A bipartisan group of senators including Iowa’s Chuck Grassley sent President Barack Obama an open letter this week asking for access to “secret legal opinions outlining your authority to authorize the killing of Americans in the course of counterterrorism operations.”
UPDATE: The Obama administration will provide “classified Office of Legal Counsel advice” on this issue to members of Congressional intelligence committees. I agree with Grassley that judiciary committees should be included as well, since they oversee the U.S. Department of Justice.
Members of the Senate Judiciary and Intelligence Committees have been seeking access to classified legal opinions about targeted killing of U.S. citizens for some time. Grassley is the ranking Republican on the Senate Judiciary Committee. Iowa’s other U.S. senator, Tom Harkin, does not serve on either committee with oversight regarding counterterrorism operations.
You can read the senators’ letter to the president here. Excerpts:
In our view, if individual Americans choose to take up arms against the United States as part of an opposing fighting force, there will clearly be circumstances in which the President has the authority to use lethal force against those Americans, just as President Lincoln had the authority to direct Union troops to fire upon Confederate forces during the Civil War. It is vitally important, however, for Congress and the American public to have a full understanding of how the executive branch interprets the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President’s power to deliberately kill American citizens is subject to appropriate limitations and safeguards. […]
Specifically, we ask that you direct the Justice Department to provide Congress, specifically the Judiciary and Intelligence Committees, with any and all legal opinions that lay out the executive branch’s official understanding of the President’s authority to deliberately kill American citizens. […]
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.
Josh Gerstein provided more background on the letter at Politico.
The eight Democrats and three Republicans are also making a not-so-veiled threat that the nominations of officials like CIA director-designate John Brennan and perhaps even Defense Secretary-designate Chuck Hagel could be held up if Obama doesn’t fork over the classified memos. […]
The Justice Department and other government agencies have rebuffed lawmakers’ prior requests for such opinions. Last month, a federal judge in New York rejected Freedom of Information Act lawsuits the New York Times and the American Civil Liberties Union brought trying to force disclosure of the same legal memoranda.
The Obama Administration has also argued strenuously against any role for the courts in overseeing the use of lethal force against Americans, even though wiretapping U.S. nationals anywhere in the world requires some authorization from the judiciary branch.
White House spokesmen had no immediate reply to a request for comment on the letter, which was signed by Sens. Ron Wyden (D-Ore.), Mike Lee (R-Utah), Mark Udall (D-Colo.), Chuck Grassley (R-Iowa), Jeff Merkley (D-Ore.), Susan Collins (R-Maine), Dick Durbin (D-Ill.), Patrick Leahy (D-Vt.), Tom Udall (D-N.M.), Mark Begich (D-Alaska) and Al Franken (D- Minn.)
Wyden signaled a few weeks ago, in another letter, that he intends to make the legal issues surrounding the use of lethal force against Americans a central issue at Brennan’s confirmation hearing. That hearing is now set for Thursday afternoon.
Obstruction on this front should absolutely hold up Senate confirmation of cabinet officials. I’d add Attorney General Eric Holder to the list in addition to Brennan and Hagel. There is no excuse for keeping this legal opinion secret from members of Congress who are supposed to provide oversight. Grassley and others are right to hold Obama’s feet to the fire.
This week Michael Isikoff of NBC News obtained a 16-page Justice Department memo on why the U.S. government can order the targeted killing of American citizens. It’s a shocking read.
In a separate talk at the Northwestern University Law School in March , Attorney General Eric Holder specifically endorsed the constitutionality of targeted killings of Americans, saying they could be justified if government officials determine the target poses “an imminent threat of violent attack.”
But the confidential Justice Department “white paper” introduces a more expansive definition of self-defense or imminent attack than described by Brennan or Holder in their public speeches. It refers, for example, to what it calls a “broader concept of imminence” than actual intelligence about any ongoing plot against the U.S. homeland.
“The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future,” the memo states.
Instead, it says, an “informed, high-level” official of the U.S. government may determine that the targeted American has been “recently” involved in “activities” posing a threat of a violent attack and “there is no evidence suggesting that he has renounced or abandoned such activities.” The memo does not define “recently” or “activities.”
Jameel Jaffer of the American Civil Liberties Union provided more background here. I recommend reading the whole post, but here are excerpts:
The 16-page white paper (read it here) is said to summarize a 50-odd page legal memo written in 2010 by the Justice Department’s Office of Legal Counsel to justify the addition of U.S. citizen Anwar Al-Aulaqi to the government’s “kill lists.” That legal memo is one of the documents the ACLU is seeking in an ongoing Freedom of Information Act lawsuit. Needless to say, the white paper is not a substitute for the legal memo. But it’s a pretty remarkable document.
The paper’s basic contention is that the government has the authority to carry out the extrajudicial killing of an American citizen if “an informed, high-level official” deems him to present a “continuing” threat to the country. This sweeping authority is said to exist even if the threat presented isn’t imminent in any ordinary sense of that word, even if the target has never been charged with a crime or informed of the allegations against him, and even if the target is not located anywhere near an actual battlefield. The white paper purports to recognize some limits on the authority it sets out, but the limits are so vague and elastic that they will be easily manipulated.
The paper initially suggests, for example, that the government’s authority to use lethal force is limited to people who present “imminent” threats, but it then proceeds to redefine the word imminence in a way that deprives the word of its ordinary meaning. The paper does something similar with the phrase “capture is infeasible.” It initially sounds like a real limitation but by page 8 it seems to mean only that the government won’t use lethal force if capture is more convenient. It’s the language of limits-but without any real restrictions.
Even more problematic, the paper contends that the limits on the government’s claimed authority are not enforceable in any court. (“There exists no appropriate judicial forum to evaluate these constitutional considerations.”) According to the white paper, the government has the authority to carry out targeted killings of U.S. citizens without presenting evidence to a judge before the fact or after, and indeed without even acknowledging to the courts or to the public that the authority has been exercised. Without saying so explicitly, the government claims the authority to kill American terrorism suspects in secret.
FEBRUARY 8 UPDATE: Grassley’s office released this memo.
Leahy & Grassley Press Administration For Legal Justifications To Kill American Citizens Using Drones
WASHINGTON — Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) and Ranking Member Chuck Grassley (R-Iowa) sent a letter Thursday calling on President Barack Obama to share with the Committee any legal memos on the targeted killings of Americans abroad.
The Senators’ bipartisan request came one day after the Administration’s decision to share classified legal opinions justifying the president’s ability to authorize the targeted killings of American citizens with the Senate and House Intelligence committees. Leahy and Grassley also joined a bipartisan letter earlier this week issuing the same request. Because the Judiciary Committee has oversight of the Department of Justice, and given that Leahy and Grassley have sought the release of Office of Legal Counsel documents on the legal justification for the targeted killing of Americans abroad since 2011, the two Senators again renewed their demand.
“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,” Leahy and Grassley wrote.
Their letter further states: “Given the important constitutional issues implicated by the targeted killing of U.S. citizens by our Government, and given our Committee’s jurisdiction over these issues and the Department, 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.”
A copy of the February 7 letter to President Obama can be found online and below.
Dear Mr. President:
In October 2011, both of us wrote to the Attorney General seeking access to any legal opinions that had been prepared by the Department of Justice regarding legal justification for the targeted killing of American citizens abroad. Last year, the Department of Justice provided members of the Senate Committee on the Judiciary (Committee) with a confidential White Paper that addressed the lawfulness of lethal operations against U.S. citizens who are senior members of al Qaeda or associated forces. Unfortunately, this White Paper was not an adequate substitute for the underlying legal analysis that we believed had been prepared by the Department’s Office of Legal Counsel (OLC), and we renewed our requests for the disclosure of those legal opinions. Earlier this week, as part of a bipartisan group of Senators, we sent a letter to you requesting that any and all OLC opinions regarding the targeted killing of American citizens abroad be disclosed to the Judiciary and Intelligence Committees of both the House and Senate.
We were informed last evening that you had directed the Department to provide copies of relevant OLC opinions to members of the Senate Select Committee on Intelligence, but not this 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.
Our Committee plays an important role in providing congressional oversight over important national security and intelligence activities conducted by the Executive Branch, and our Members and our staff have frequently been provided access to highly classified documents. Given the important constitutional issues implicated by the targeted killing of U.S. citizens by our Government, and given our Committee’s jurisdiction over these issues and the Department, 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.
Thank you for your attention to this important matter. We look forward to your response.
PATRICK LEAHY CHARLES E. GRASSLEY
Chairman Ranking Member
Senate Judiciary Committee Senate Judiciary Committee