So today, in a bit of good news, Senators on the Intelligence Committee announced that the Obama administration had agreed to share with them documents outlining the full scope of the legal rationale it is claiming for the authority to target American citizens who are terror suspects abroad:
The administration has now provided the Senate Intelligence Committee with full access to documents outlining the President’s authority to conduct targeted killings of Americans in counter terrorism operations. We are pleased that we now have the access that we have long sought and need to conduct the vigilant oversight with which the committee has been charged.
The information, however, remains classified, which means the public cannot have any access to the administration’s rationale, so there can’t be any public discussion of it. This prompted an interesting suggestion from Dave Weigel:
I’ve asked senators if they’ll approach this the way that Sen. Mike Gravel once approached the Pentagon Papers, and read information into the congressional record, effectively freeing it. No answer yet.
Probably the most likely candidate on the Intel committee to be willing to do this would be Ron Wyden of Oregon, who has long pushed for transparency around the legal rationale for this program. But Wyden’s office confirms to me that he will not be doing this, on the idea that it will compromise the cause of transparency in the long run. However, Wyden will continue to push the administration to declassify the rationale.
In other targeted killing news, Adam Serwer reports that Attorney General Eric Holder, in a letter to Rand Paul, suggested that it does believe it has the legal authority to target American citizens on American soil suspected of terrorism, but only under “extraordinary” circumstances:
It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States. For example, the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances like a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.
Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.
Holder is claiming such authority might exist, but only in highly theoretical circumstances. However, he is not ruling out a scenario under which the President would have that authority. Meanwhile, John Brennan, Obama’s nominee to head the CIA, has explicitly declared that his agency does not have any legal authority to conduct lethal operations inside the United States.
Whatever the validity of the rationale for this program, we still need to know more about it. I hope Senator Wyden and others make good on their promise to push for declassification.