Feb. 6 (Bloomberg) -- A Senate hearing on John Brennan’s nomination as CIA director will give U.S. lawmakers a chance to challenge a member of the White House national security team over policies including the targeted killings of suspected terrorists overseas.
The Obama administration’s drone program, pursued without the oversight of Congress or the judiciary, has angered lawmakers who haven’t been able to question the White House about it. Their opportunity comes tomorrow during a confirmation hearing on Brennan, President Barack Obama’s counterterrorism adviser and an architect of the drone policy.
Brennan, 57, will face questions about a Justice Department white paper outlining the administration’s legal basis for targeting suspected terrorists who are U.S. citizens without due process.
“If the checks and balances in our Constitution mean anything, the courts and Congress should have the power to check and balance the executive’s decisions about whether to kill U.S. citizens without a trial,” said Marjorie Cohn, a professor of human rights at the Thomas Jefferson School of Law in San Diego and a critic of the targeted assassination program.
During the hearing before the Senate Select Committee on Intelligence, Brennan will also be queried about U.S. policies on interrogating terror suspects and launching cyber attacks, as well as about leaks of classified information. Still, the issue of the drone program is likely to take center stage as lawmakers weigh the nomination of Brennan, a 25-year veteran of the CIA.
White House spokesman Jay Carney yesterday defended the policy on targeted killings on foreign soil, including of U.S. citizens, as “legal,” “ethical” and “wise.”
Asked today about civilian deaths in drone attacks, Carney said, “Our counterterrorism attacks are designed, including our targeted efforts, to limit civilian casualties.”
“It’s fair to say that fewer civilians lose their lives in an effort to go after senior leadership in al-Qaeda along the lines that we are discussing here, as opposed to an effort to invade a country with hundreds and thousands of troops and take cities and towns,” he said.
Lawmakers and human rights lawyers say the 16-page Justice Department memo, obtained by NBC News, doesn’t provide the transparency Obama promised when he vowed in May 2009 that whenever his administration couldn’t release information for national security reasons, he would “insist that there is oversight of my actions -- by Congress or by the courts.”
Senators led by Ron Wyden, an Oregon Democrat, have pressed the administration to explain its basis for using lethal force against Americans abroad and renewed their request in a letter on Feb. 4. Senator Mark Udall, a Colorado Democrat on the intelligence panel, said yesterday that the Justice Department white paper doesn’t provide the disclosure lawmakers seek.
“What the white paper does not do is answer specific questions regarding the scope of the authority and the threshold for evidence of terrorist activity,” Udall said in an interview.
Udall said he and his colleagues are asking for the legal opinions on which the white paper is based. “Congress, at a minimum, should be privy to the actual opinions that authorize lethal action,” he said.
The senators implied in their letter that foot-dragging might hurt Brennan’s confirmation. “The executive branch’s cooperation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions,” they wrote.
Brennan has publicly acknowledged and detailed some aspects of the policies and “will answer senators’ questions ably,” Carney said. “We believe that he will be confirmed.”
In the past four years, the Obama administration conducted six times as many drone strikes in Pakistan, the country where the CIA has conducted most of its targeted killings, as President George W. Bush’s administration did in the previous four years, according to the London-based Bureau of Investigative Journalism. The nonprofit organization tracks drone strikes and civilian casualties.
The paper obtained by NBC News detailed circumstances under which the U.S. is justified in ordering the killing of a U.S. citizen in al-Qaeda or an affiliated terrorist group. The unclassified document was prepared for members of Congress, Carney said.
“In defined circumstances, a targeted killing of a U.S. citizen who has joined al-Qaeda or its associated forces would be lawful under U.S. and international law,” the memo says. Those circumstances include killing a U.S. al-Qaeda leader actively engaged in “planning operations to kill Americans.”
Such killings are legal, the document said, if an “informed, high-level official of the U.S. government” determines the citizen poses an “imminent” threat of violent attack, if capture is “infeasible,” and if the operation can be carried out “in a manner consistent with applicable law-of-war principles.”
Some lawyers questioned the way the administration defines “imminence.” The white paper says that the U.S. isn’t required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”
That definition doesn’t comport with established international law, said Christopher Swift, a lawyer and an adjunct professor of national security studies at Georgetown University in Washington.
“In the international context, the preconditions are having no time for deliberation and no other means of response,” Swift said. “The difficulty with administration’s argument is that the imminence argument is really, really subjective and doesn’t comport with established practice in our law or international law.”
Charles Dunlap, a retired Air Force major general who teaches law at Duke University in Durham, North Carolina, questions whether it’s even necessary to resolve what ‘imminence’’ means.
“It is not a legal requirement once an armed conflict is under way,” Dunlap said in an e-mail. “And both the U.S. and al-Qaeda seem to agree that they are in an armed conflict with each other. In an armed conflict, bona fide combatants such as U.S. forces can attack their enemy wherever and whenever they find them.”
Some lawmakers agreed that they had no trouble with the administration’s policy of targeting American citizens who join a terrorist group such as al-Qaeda.
“They are part of an organization that is constantly plotting and planning to kill Americans, and so they have joined the enemy,” Representative Mike Rogers, a Michigan Republican and chairman of the House Permanent Select Committee on Intelligence, said today on “Andrea Mitchell Reports” on MSNBC.
Brennan, who performed clandestine and analytical work with the CIA and held a senior post in President George W. Bush’s administration, has had a central role in both administrations’ use of unmanned aircraft to attack suspected terrorists.
In 2009, Brennan withdrew from consideration as Obama’s first CIA chief after human-rights groups and some Democrats raised concerns that he had supported the use of harsh interrogation techniques on terror suspects. Obama instead named Brennan a White House adviser, bypassing Senate confirmation.
Ahead of the Brennan hearing, the Open Society Justice Initiative released a 216-page report on the CIA’s secret detention programs since the Sept. 11, 2001, attacks, stating that more than 50 countries are implicated in “kidnapping, detention and torture as part of the CIA’s secret detention and extraordinary rendition programs.”
The group, founded by billionaire investor George Soros, says its mission is to fight human-rights violations linked to counterterrorism operations.
Brennan said the CIA’s program of sending suspected terrorists to other countries -- including some that practice torture -- for questioning was an “absolutely vital tool” during a 2005 interview with PBS’s “NewsHour.” In a 2007 interview on CBS Corp.’s “The Early Show,” Brennan said “enhanced interrogation tactics” saved lives while saying waterboarding, or simulated drowning, should be prohibited.
Vincent Cannistraro, a former CIA officer and National Security Council official who once worked for Brennan, said his former boss was never in favor of waterboarding or other extreme measures, never pushed for them and argued internally that they were prone to producing inaccurate intelligence.
Udall said he will ask about the CIA’s detention and interrogation program, adding that a Senate study based on more than 6 million pages of CIA and other records raises questions about intelligence operations and oversight.
Some Republicans will push Brennan to explain leaks to reporters that they say were intended to burnish Obama’s national security credentials during last year’s campaign --from the president’s role in choosing targets for drone attacks to the disclosure that the U.S. and Israel developed the Stuxnet computer virus that damaged Iran’s nuclear centrifuges.
“John Brennan has not been absolved of responsibility for the slew of high-level security leaks that have characterized this White House,” Senator John Cornyn of Texas, the No. 2 Republican leader in the Senate, said last month. “This investigation needs to be resolved before his nomination can move forward.”