• Senators, John Brennan brace for national security showdown in CIA hearing

    Saul Loeb / AFP - Getty Images

    CIA director nominee John Brennan during a meeting on Capitol Hill in Washington on Jan. 31, 2013.

    By Tom Curry, National Affairs Writer, NBC News

    Amid new developments and revelations, President Barack Obama’s national security policies, past and future, are set to come under Senate scrutiny Thursday.

    Most notably, Obama’s nominee to head the Central Intelligence Agency, John Brennan, will address what role the targeted killings of terrorists, either by using drone strikes or other means, have played and should play in national security policy.

    Questions about targeted killings intensified Monday after a report by NBC News revealed a Justice Department memo which argued it was lawful for the president to target U.S. citizens who are leaders of al-Qaida or “an associated force.” Brennan will be appearing before the Senate Intelligence Committee for his confirmation hearing.

    On Wednesday, an Obama administration official said the president had directed the Justice Department to give the congressional intelligence committees access to classified memos justifying the targeted killings policy. Until now the administration had refused to do this.  

    Addressing the past on Thursday will be Defense Secretary Leon Panetta and Gen. Martin Dempsey, the chairman of the Joint Chiefs of Staff, as they testify before the Armed Services Committee about the Sept. 11, 2012 attack on the U.S. diplomatic mission in Benghazi.

    Senators on the panel -- especially Sen. Lindsey Graham, R-S.C. -- want to know how the U.S. military reacted to the attack, and what the Defense Department’s internal review revealed after the event.

    The two hearings will feature contrasting political color: Republicans -- led by Graham, Sen. John McCain of Arizona and Sen. Kelly Ayotte of New Hampshire -- have been the ones who have made an issue of the Benghazi attack almost since it took place. They’ve implied that a full accounting of what happened was delayed until after the presidential election. Graham held up Obama’s nomination of Chuck Hagel to be defense secretary until he could get a chance to question Panetta about Benghazi.

    But Obama’s drone policy -- directed largely by Brennan in his role as Obama’s counter-terrorism adviser -- has drawn criticism both from progressives on the left and those on the right who are fearful of an excessive concentration of power in the presidency.

    On Benghazi, much is already known. In its report on the attack, the Senate Homeland Security and Governmental Affairs Committee said last December that Panetta’s Defense Department and Hillary Clinton’s State Department hadn't jointly studied the availability of U.S. military forces to defend or rescue the U.S. diplomats in Benghazi in the event of a crisis.

    The Pentagon’s Africa Command didn’t have planes, helicopters, or other forces close to Benghazi on the day of the attack. “The Djibouti base was several thousand miles away. There was no Marine expeditionary unit, carrier group or a smaller group of U.S. ships closely located in the Mediterranean Sea that could have provided aerial or ground support or helped evacuate personnel from Benghazi,” the report said.

    As for Brennan and drones, Micah Zenko, a fellow at the Council on Foreign Relations and author of a new report called “Reforming U.S. Drone Strike Policies,” said Obama’s choice of him as CIA director “now places him as the lead executive authority over all CIA drone strikes. The real question is whether John Brennan’s move from the White House to Langley to be director of the CIA is in fact an effort for the CIA to get out of the drone strikes business.”

    Zenko noted that Panetta recently said that the Pentagon, not the CIA, should be conducting the drone strikes against al-Qaida suspects.

    But Zenko cautioned against those who would head into the Brennan hearing with high hopes for new information. Having read transcripts of the past 10 CIA director confirmation hearings, he said, “It would be unprecedented if there were an in-depth discussion about ongoing covert activities.” The Senate Intelligence Committee “simply doesn't work that way, especially under chairman Sen. (Dianne) Feinstein” of California, he said.

    A memo from the Justice Department, provided to NBC News, provides new information about the legal reasoning behind one of the Obama administration's controversial policies. NBC's Michael Isikoff reports.

    Zenko added that the most useful line of questioning of Brenna would be regarding his conceptions of airpower. Brennan has repeatedly used the cancer analogy for air strikes killing terrorists without damaging the surrounding “tissue.”

    “That's a dangerous, antiseptic, and unrealistic conception of military force,” Zenko said.

    Interrogation vs. deadly strikes
    But Obama spokesman Jay Carney told reporters at a White House briefing Wednesday, “Far fewer civilians lose their lives in an effort to go after senior leadership in al-Qaida” by using drone attacks “as opposed to an effort to invade a country with hundreds and thousands of troops and take cities and towns.” Implication: if you want to avoid another Iraq or Afghanistan, then support Obama’s drone policy.

    Carney said Obama believes “that we need to move forward with more transparency as well as create, in his words, a legal framework around how these decisions are made.” But Obama believes he has the full constitutional authority to order targeted killings -- “transparency” or no transparency.

    For those skeptical of Obama’s policy, there will be two other possible lines of questioning directed at Brennan:

    1. Do the foreign policy costs of Obama’s use of drones -- alienating and angering people in Muslim countries -- outweigh its benefits?
    2. Does the drone policy suggest that Obama would rather kill jihadists than capture them? Adding more detainees to those already held at Guantanamo -- a facility he pledged to close but hasn’t -- could amount to a political public relations headache.

    The drone strikes have been unpopular in Pakistan and other countries. Making the case that drone strikes have high costs as well as benefits, the former U.S. commander in Afghanistan, Gen. Stanley McChrystal, told Reuters recently, “What scares me about drone strikes is how they are perceived around the world. The resentment created by American use of unmanned strikes … is much greater than the average American appreciates.”

    Brennan has an opportunity on Thursday to rebut this view. He argued last August that “contrary to conventional wisdom, we see little evidence that these actions (drone strikes) are generating widespread anti-American sentiment or recruits” for al-Qaida. The targeted strikes against terrorists, he said, “are not the problem, they are part of the solution.”

    Finally, Thursday’s Brennan hearing is a chance for senators on the panel to ask him whether Obama is using drone strikes as a less politically troublesome option than capturing detainees and putting them in Guantanamo.

    This is an argument that former Bush administration officials such as ex-CIA director Gen. Michael Hayden and former CIA legal counsel John Rizzo have made.

    Last week in a panel discussion at the American Enterprise Institute, a conservative Washington think tank, Hayden said interrogating al-Qaida operatives is a vital source of insight into the terrorists’ plans and capabilities:

    But he warned, “We have made it so legally difficult and so politically dangerous to capture that it seems, from the outside looking in, that the default option is to take the terrorists off the battlefield in another sort of way” – in other words, by killing them. This could result in a loss of valuable intelligence.

    Rizzo said, “It’s always been in the agency’s institutional DNA to want to collect intelligence by all sorts of means, especially human intelligence. You can’t collect human intelligence from a dead guy.”

    Related:

    White House: Congress to get classified drone info

    4 key questions about controversial Justice Department drone memo

    Legal experts fear implications of White House drone memo

  • Wyden vows to 'pull out all the stops' to get 'actual legal analysis' on drones

    By Bob Costantini, NBC News Radio Correspondent

    ANNAPOLIS, Md. -- Ron Wyden figured he wouldn't get a chance to ask President Obama directly. So, in an interview Wednesday at the Democrats' Senate Retreat, the member of the Intelligence Committee -- a day before the president's nominee to be CIA director -- said he had serious questions about the non-classified Justice Department memo, obtained by NBC News.

    "The memo doesn't answer the central questions," said the Oregon senator and longtime critic of the drone strikes. To Wyden, the central questions revolve around, "When does the government have the legal right to kill an American?"

    The memo outlines the administration's justification for the targeted killing of American citizens overseas -- via drone strikes -- if they are considered high-level al Qaeda operatives and may be plotting attacks against the U.S.

    The retreat in Annapolis was highlighted by a visit from the president. He had received a letter from Wyden and 10 other senators, both Republicans and Democrats, asking to see the rationale for that "right," as outlined in the memo.

    In fact, Wyden contended, "The administration has essentially been stonewalling the committee and myself and others for over two years by not actually making that memo available with someone willing to answer questions about it."

    Brennan's confirmation hearing Thursday will give Wyden his chance.

    "And I want it understood that because this is such a central time, where you have an individual with such enormous influence who's really the architect of the counter-terror policy in the Obama administration," Wyden said, "that I'm going to pull out all the stops to get the actual legal analysis, because without it, in effect, the administration is, in effect, practicing secret law."

    Brennan has been the president's top anti-terrorism adviser and has 25 years of CIA experience.

    Wyden says the inability to get answers, coupled with the thought that life-and-death targeted killing decisions can be made without any judicial process "makes a mockery out of the oversight process."

    Before hustling in to hear the president, Wyden concluded, "In effect, this position is no different than the position the Bush administration adhered to in [the overall war on terror], which, I guess is largely, 'Trust us. Trust us; we'll make the right judgments.'"

    At the White House, facing a second day of questions about the matter, spokesman Jay Carney indicated the president himself is not worried by the leak.

    "He thinks that it is legitimate to ask questions about how we prosecute the war against al Qaeda," Carney said.

  • Justice Department memo reveals legal case for drone strikes on Americans

    A secretive memo from the Justice Department, provided to NBC News, provides new information about the legal reasoning behind one of the Obama administration's controversial policies. Now, John Brennan, Obama's nominee for CIA director, is expected to face tough questions about drone strikes on Thursday when he appears before the Senate Intelligence Committee. NBC's Michael Isikoff reports.

    By Michael Isikoff, National Investigative Correspondent, NBC News

    A confidential Justice Department memo concludes that the U.S. government can order the killing of American citizens if they are believed to be “senior operational leaders” of al-Qaida or “an associated force” -- even if there is no intelligence indicating they are engaged in an active plot to attack the U.S.

    The 16-page memo, a copy of which was obtained by NBC News, provides new details about the legal reasoning behind one of the Obama administration’s most secretive and controversial polices: its dramatically increased use of drone strikes against al-Qaida suspects abroad, including those aimed at American citizens, such as the  September 2011 strike in Yemen that killed alleged al-Qaida operatives Anwar al-Awlaki and Samir Khan. Both were U.S. citizens who had never been indicted by the U.S. government nor charged with any crimes.  

    The secrecy surrounding such strikes is fast emerging as a central issue in this week’s hearing of White House counterterrorism adviser John Brennan, a key architect of the drone campaign, to be CIA director.  Brennan was the first administration official to publicly acknowledge drone strikes in a speech last year, calling them “consistent with the inherent right of self-defense.” 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.    

    Michael Isikoff, national investigative correspondent for NBC News, talks with Rachel Maddow about a newly obtained, confidential Department of Justice white paper that hints at the details of a secret White House memo that explains the legal justifications for targeted drone strikes that kill Americans without trial in the name of national security.

    “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.

    Read the entire 'white paper' on drone strikes on Americans

    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.” 

    As in Holder’s speech, the confidential memo lays out a three-part test that would make targeted killings of American lawful:  In addition to the suspect being an imminent threat, capture of the target must be “infeasible, and the strike must be conducted according to “law of war principles.” But the memo elaborates on some of these factors in ways that go beyond what the attorney general said publicly. For example, it states that U.S. officials may consider whether an attempted capture of a suspect  would pose an “undue risk” to U.S. personnel involved in such an operation. If so, U.S. officials could determine that the capture operation of the targeted American would not be feasible, making it lawful for the U.S. government to order a killing instead, the memo concludes.

    The undated memo is entitled “Lawfulness of a Lethal Operation Directed Against a U.S. Citizen who is a Senior Operational Leader of Al Qa’ida or An Associated Force.”  It was provided to members of the Senate Intelligence and Judiciary committees in June by administration officials on the condition that it be kept confidential and  not discussed publicly.

    Although not an official legal memo, the white paper was represented by administration  officials as a policy document that closely mirrors the arguments of classified memos on targeted killings by the Justice Department’s  Office of Legal Counsel, which provides authoritative legal advice to the president and all executive branch agencies. The administration has refused to turn over to Congress or release those memos publicly -- or even publicly confirm their existence. A source with access to the white paper, which is not classified, provided a copy to NBC News. 

    “This is a chilling document,” said Jameel Jaffer, deputy legal director of the ACLU, which is suing to obtain administration memos about the targeted killing of Americans.  “Basically, it argues that the government has the right to carry out the extrajudicial killing of an American citizen. … It recognizes some limits on the authority it sets out, but the limits are elastic and vaguely defined, and it’s easy to see how they could be manipulated.”

    In particular, Jaffer said, the memo “redefines the word imminence in a way that deprives the word of its ordinary meaning.”  

    Khaled Abdullah / Reuters

    Tribesmen this week examine the rubble of a building in southeastern Yemen where American teenager Abdulrahmen al-Awlaki and six suspected al-Qaida militants were killed in a U.S. drone strike on Oct. 14, 2011. Al-Awlaki, 16, was the son of Anwar al-Awlaki, who died in a similar strike two weeks earlier.

    A Justice Department spokeswoman declined to comment on the white paper. The spokeswoman, Tracy Schmaler, instead pointed to public speeches by what she called a “parade” of administration officials, including Brennan, Holder, former State Department Legal Adviser Harold Koh and former Defense Department General Counsel Jeh Johnson that she said outlined the “legal framework” for such operations. 

    Pressure for turning over the Justice Department memos on targeted killings of Americans appears to be building on Capitol Hill amid signs that Brennan will be grilled on the subject at his confirmation hearing before the Senate Intelligence Committee on Thursday. 

    On Monday, a bipartisan group of 11 senators -- led by Democrat Ron Wyden of Oregon — wrote  a letter to President Barack Obama asking him to release all Justice Department memos on the subject. While accepting that “there will clearly be circumstances in which the president has the authority to use lethal force” against Americans who take up arms against the country,  it said, “It is vitally important ... for Congress and the American public to have a full understanding of how  the executive branch interprets the limits and boundaries of this authority.”

    Anticipating domestic boom, colleges rev up drone piloting programs

    The completeness of the administration’s public accounts of its legal arguments was also sharply criticized last month by U.S. Judge Colleen McMahon in response to a  lawsuit brought by the New York Times and the ACLU seeking access to the Justice Department memos on drone strikes targeting Americans under the Freedom of Information Act.  McMahon, describing herself as being caught in a “veritable Catch-22,”  said she was unable to order the release of the documents given “the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws while keeping the reasons for the conclusion a secret.”

    In her ruling, McMahon noted that administration officials “had engaged in public discussion of the legality of targeted killing, even of citizens.” But, she wrote, they have done so “in cryptic and imprecise ways, generally without citing … any statute or court decision that justifies its conclusions.”

    In one passage in Holder’s speech at Northwestern in March,  he alluded – without spelling out—that there might be circumstances where the president might order attacks against American citizens without specific knowledge of when or where an attack against the U.S. might take place.

    “The Constitution does not  require the president to delay action until some theoretical end-stage of planning, when the precise time, place and manner of an attack become clear,”  he said.

    But his speech did not contain the additional language in the white paper suggesting that no active intelligence about a specific attack is needed to justify a targeted strike. Similarly, Holder said in his speech that targeted killings of Americans can be justified  if “capture is not feasible.” But he did not include language in the white paper saying that an operation might not be feasible “if it could not be physically effectuated during the relevant window of opportunity or if the relevant country (where the target is located) were to decline to consent to a capture operation.” The speech also made no reference to the risk that might be posed to U.S. forces seeking to capture a target, as was  mentioned in the white paper. 

    The white paper also includes a more extensive discussion of why targeted strikes against Americans does not violate constitutional protections afforded American citizens as well as   a U.S. law that criminalizes the killing of U.S. nationals overseas.

    It  also discusses why such targeted killings would not be a war crime or violate a U.S. executive order banning assassinations.

     “A lawful killing in self-defense is not an assassination,” the white paper reads. “In the Department’s view, a lethal operation conducted against a U.S. citizen whose conduct poses an imminent threat of violent attack against the United States would be a legitimate act of national self-defense that would not violate the assassination ban. Similarly,  the use of lethal force, consistent with the laws of war, against an individual who is a legitimate military target would be lawful and would not violate the assassination ban.”

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