Legislators on Capitol Hill took aim at the government’s drone program on February 7, stepping up demands for more information from the White House on the legal justification for targeted killings of terrorists.

After years of secrecy about the program that has caused the deaths of American terror suspects and civilians, President Barack Obama called top senators on the Senate Select Committee on Intelligence late Wednesday evening and agreed to turn over the Justice Department’s full legal analysis of the program. The move came days after a DOJ "white paper" was leaked to NBC News and the night before the confirmation hearing for John Brennan, the nominee for Central Intelligence Agency director who is regarded as a main architect of the drone program.

Other lawmakers clamored for access to that opinion, which emanated from DOJ’s Office of Legal Counsel. At a brief Senate Judiciary Committee meeting in a cramped side room near the Senate floor, several senators expressed frustration they were not provided the OLC opinion.

"Taking the life of American citizens is a tremendous power that should not go unchecked," said Senator Chuck Grassley (R-Iowa), adding that the judiciary committee has previously been allowed to review documents on torture and the secret Foreign Intelligence Surveillance Act court. "I think there’s precedent in us getting those."

But even members of the intelligence committee said DOJ was not fully delivering on the president’s promise, and wasn’t even allowing committee staff attorneys to review the opinion. "When I went to read the opinion this morning, it is not clear that is what was provided," said Senator Ron Wyden (D-Ore.), a member of the intelligence committee.

The issue boiled over at Brennan’s confirmation hearing. Protesters of the drone and torture programs descended on the hearing, holding up signs and shouting to interrupt Brennan’s opening statement five times before being escorted from the room. Senator Dianne Feinstein (D-Calif.) kicked out the public, but not before telling Brennan the extreme "covert" nature of the drone program should end, since she couldn’t even tell the public how many civilians died in the strikes each year.

"I think that rationale, Mr. Brennan, is long gone," Feinstein said.

Feinstein, who serves on both the judiciary and intelligence committees, said that, until today, the intelligence committee had only been given a "white paper" justifying the drone program. Grassley and other senators on the committee also received that paper in October 2011, but it became public this week when it was leaked to NBC news.

Senator Dick Durbin (D-Ill.), the chairman of the judiciary committee’s constitution subcommittee, said during the committee’s February 7 meeting that he would be pressing the administration on the drone program because the release of the OLC opinions raises larger questions: "What is war in the 21st Century? Is the use of drones an invasion of a country? Is cyberwar, war?"

"I think many of us at the time would have been shocked to learn that we were voting for the longest war in the United States or that we were giving blanket authorization for use of force against terrorism without any return to the conversation," Durbin said. "I think it’s time."

"I say that with great respect for this president, I know he’s doing everything in his power to keep America safe," Durbin said, "but we have a constitutional obligation here to ask some very important questions."

The intelligence committee has the obligation to make sure the government is following the law, but "it is very difficult to make a judgment if you haven’t seen the OLC opinions," Feinstein said during the judiciary meeting. "I am very hopeful that this is the beginning of a change on this administration, because it makes our job as an oversight agency much easier if we can see the OLC opinion."

Until this week, the Justice Department was withholding material about the legal justification the Obama administration has used for the strategy of targeted killings of those associated with al-Qaeda or other terrorist organizations, often carried out using remotely controlled planes, or drones. In 2011, most controversially, three American citizens were killed in drone strikes: Al-Qaeda operative Anwar Al-Awlaki, his teenage son Abdulrahman Al-Awlaki, and Samir Khan, publisher of an anti-American magazine.

That white paper was leaked this week, however. Many of the details were the same as those laid out by Attorney General Eric Holder Jr. in a speech last year at Northwestern University. But the details show the "recklessness of the government’s central claim and the deficiencies in the government’s defense of it," the ACLU’s deputy legal director, Jameel Jaffer, wrote.

 

Jaffer wrote in an analysis that the white paper gives a "sweeping authority" for the government to carry out the extrajudicial killing of an American citizen if "an informed, high-level official" deems him a present and "continuing" threat to the United States.

The authority exists even if the target has not been charged with a crime or told of the allegations against him, and is nowhere near a battlefield, Jaffer wrote. "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," Jaffer wrote.

Contact Todd Ruger at truger@alm.com.