February 20, 2013
White House Tactic for C.I.A. Bid Holds Back Drone Memos
By SCOTT SHANE and MARK MAZZETTI
WASHINGTON — 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.
Only after an unclassified Justice Department white paper summarizing the legal arguments was leaked to NBC News this month did the administration make two legal opinions on the targeted killing of American citizens briefly available to members of the Intelligence Committees.
But the documents were available to be viewed only for a limited time and only by senators themselves, not their lawyers and experts.
The arrangement frustrated members of the committee, who were not allowed to have their staff members study the highly complex legal opinions. But the reinvigorated public discussion set off by the nomination of Mr. Brennan has raised hopes in Congress that the debate will continue even if he is confirmed.
The refusal so far to share more of the opinions with Congress, or to make redacted versions of the memos public, comes despite a pledge of greater transparency by President Obama in his State of the Union address on Feb. 12.
“I recognize that in our democracy, no one should just take my word that we’re doing things the right way,” the president said. “So, in the months ahead, I will continue to engage with Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.”
The chairwoman of the Senate Intelligence Committee, Dianne Feinstein, Democrat of California, has long called for all Justice Department legal opinions on intelligence to go to the committee. But a spokesman said she did not believe the issue should block Mr. Brennan’s confirmation.
The votes of at least two other Democratic senators who feel strongly about greater access to the legal opinions, Ron Wyden of Oregon and Mark Udall of Colorado, are less certain.
“I still have a number of unanswered questions about the president’s authority to kill Americans who are deemed to be a threat to the United States,” Mr. Wyden said.
He said that he was “encouraged” by Mr. Obama’s promise of greater transparency in the State of the Union address but that “the administration has not yet lived up to that commitment.”
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.
By most accounts, Mr. Brennan is likely to be confirmed as director of the C.I.A., in part because some human rights advocates who were once deeply skeptical about his record are now ambivalent.
Four years ago, a swell of criticism of Mr. Brennan’s association with the Bush administration’s detention and interrogation program short-circuited Mr. Brennan’s bid to become Mr. Obama’s first C.I.A. director. He withdrew his name from consideration for the job, and wrote a sharply worded letter to Mr. Obama in November 2008 accusing critics of distorting his record.
In his subsequent appointment as Mr. Obama’s counterterrorism adviser, Mr. Brennan has become the American official most closely associated with the drone program, also a target of human rights groups. But he has also won some respect from the groups, which have come to see him as a voice for some of their concerns in internal deliberations.
“There are certainly people who see Brennan as a symbol of programs they disapprove of, particularly the drone program,” said Tom Malinowski, Washington director of Human Rights Watch. “In my case, though there are issues on which he and I would undoubtedly disagree, I noticed that of all the senior people on the president’s national security team, no one seemed more willing to argue that counterterrorism needed to have a moral dimension and to be grounded in the rule of law.”
Tommy Vietor, a spokesman for the National Security Council, said that human rights groups once had a “fun-house mirror” picture of Mr. Brennan.
But over the past four years, he said, Mr. Brennan’s stances on issues like closing the prison at Guantánamo Bay, Cuba, have won him praise from current and former members of the Obama administration who have long been vocal about human rights issues.
One of those people, Harold Hongju Koh, a former State Department legal adviser, said that rights groups should embrace Mr. Brennan’s nomination.
“Who would they rather have, and why would that person promote their values as C.I.A. director more than John Brennan?” Mr. Koh asked.
But the continuing secrecy around the drone program remains a stumbling block for some advocates.
“We have this drone war, and the American public has no idea what the rules are, and Congress doesn’t know much more,” said Virginia E. Sloan, president of the Constitution Project, a civil liberties group in Washington. “YouTube appearances and speeches,” she said, referring to the president’s online appearances and officials’ public remarks, “are absolutely no substitute for having the actual memos in hand.”
Elisa Massimino, president of Human Rights First, an advocacy group, said the administration had a long way to go to fulfill its promise of greater openness.
“President Obama and Mr. Brennan have both pledged transparency,” she said. “Let’s see it.”