Tomorrow, the Senate Intelligence Committee will hold a hearing on John Brennan’s nomination as CIA director. In the wake of NBC’s explosive report on the Justice Department white paper laying out a legal rationale for killing Americans suspected of belonging to Al Qaeda, Brennan will likely face tough questioning from Democrats.
With the help of attorney Chris Anders of the ACLU, as well as two letters from Senator Ron Wyden, and blogging by Glenn Greenwald, Emptywheel, Adam Serwer, James Downie, and others, here are a few questions I hope he is asked:
1) The Office of Legal Counsel is known to have compiled a much longer June 2010 legal memo justifying the killing of American citizens suspected of belonging to Al Qaeda, but the administration has not publicly admitted to its existence or shared it with Congress. Can you confirm its existence now? What further legal rationales are laid out in that memo, if any, that are not contained in the white paper?
2) Given that the administration could release that OLC memo with redactions of sensitive material, what is the rationale for keeping it secret from Congress? If the legal rationale in the longer OLC memo is different from the one in the shorter white paper, why release to Congress only the white paper while keeping the OLC memo concealed? If the legal rationales are the same, what is the justification for not releasing the OLC memo to Congress along with the white paper?
3) In addition to this OLC memo, are there other legal memos further developing the administration’s views as to why these killings are legal? What is the justification for shielding them from Congressional oversight?
4) The white paper claims that these killings are legal if “an informed, high level official” has “determined that the targeted individual poses an imminent threat of violent attack against the United States.” Please define “high level official,” and please tell us which members of the administration specifically are seen to have this decision-making authority.
5) The white paper states that the killing of an American citizen suspected of being an Al Qaeda leader can be legally killed if the aforementioned high level officials believe there is “an imminent threat of violent attack.” But it adds that this “does not require the United States to have clear evidence that a specific attack on U.S. persons or interests will take place in the significant future.” What are the criteria for determining that the threat of violent attack is “imminent”? Who is making the decision to green light killings of this sort based on these criteria, other than the president himself?
UPDATE: Also see my Post colleague James Downie’s piece on this.