WASHINGTON — President Obama’s plan to install his top counterterrorism adviser as director of the CIA has opened the administration to new scrutiny over the targeted-killing policies it has fought to keep hidden from the public.
The administration’s refusal to provide details about one of the most controversial aspects of its drone campaign — strikes on U.S. citizens abroad — has emerged as a potential source of opposition to nominee John Brennan, who faces a Senate confirmation hearing Thursday.
Brennan has presided over a major expansion of drone use, although he is also credited with imposing stricter internal reviews on the selection of targets.
The secrecy surrounding the policy was punctured Monday with the disclosure of a Justice Department “white paper” that spells out the administration’s case for killing Americans accused of being al-Qaida operatives.
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The timing of the leak appeared aimed at intensifying pressure on the White House to disclose more-detailed legal memos that the paper summarizes — and at putting Brennan on the defensive for his appearance on Capitol Hill.
Administration officials Tuesday sought to play down the significance of the disclosure, saying they have already described the principles outlined in the document in a series of speeches.
“One of the things I want to make sure that everybody understands is that our primary concern is to keep the American people safe, but to do so in a way that’s consistent with our laws and consistent with our values,” Attorney General Eric Holder said in response to questions about the document.
Nevertheless, the leak and signals from senior lawmakers that they may seek to delay, if not derail, Brennan’s confirmation made it clear the White House has landed in a fight it wanted to avoid.
Sen. Ron Wyden, D-Ore., a member of the intelligence committee, said Brennan’s level of influence and the timing of his nomination have given lawmakers leverage they lacked in previous efforts to seek details from the White House.
Brennan “is the architect of [the administration’s] counterterrorism policy,” Wyden said. “If the Congress doesn’t get answers to these questions now, it’s going to be extremely difficult, if not impossible, to get them in the future.”
The white paper, which was first reported by NBC News, concludes the United States can lawfully kill one of its own citizens overseas if it determines the person is a “senior, operational leader” of al-Qaida or one of its affiliates and poses an imminent threat.
But the 16-page document allows for an elastic interpretation of those concepts and does not require the target be involved in a specific plot, because al-Qaida is “continually involved in planning terrorist attacks against the United States.”
The paper does not spell out who might qualify as an “informed, high-level official” able to determine whether an American overseas is a legitimate target. It avoids specifics on a range of issues, including the level of evidence required for an American to be considered a “senior, operational” figure in al-Qaida.
The document’s emphasis on those two words, which appear together 16 times, helps to explain the careful phrasing the administration employed in the single case in which it intentionally killed a U.S. citizen in a counterterrorism strike.
Within hours after Anwar al-Awlaki’s death in September 2011, White House officials described the U.S.-born cleric as “chief of external operations” for al-Qaida’s affiliate in Yemen, a designation they had not used publicly before the strike.
Officials said that Awlaki, previously portrayed mainly as a propagandist, was directly involved in a series of plots, including the attempted bombing of a Detroit-bound airliner on Christmas Day 2009.
The white paper, distributed confidentially to certain lawmakers last summer, doesn’t indicate when the underlying Justice Department memos on targeted killings of Americans were completed.
As a result, it is unclear whether the memos were in place before the first apparent attempt to kill Awlaki, a joint U.S.-Yemeni strike shortly before the foiled Detroit plot in 2009.
Three other Americans died in U.S. airstrikes in Yemen since 2002, including Awlaki’s 16-year-old son. But U.S. officials have said those Americans were casualties of attacks aimed at other senior al-Qaida operatives.
The New York Times disclosed Tuesday that the CIA conducts lethal drone strikes against al-Qaida militants inside Yemen from a remote base in Saudi Arabia, including the strike that killed Awlaki.
Any operation by U.S. military or intelligence officials inside Saudi Arabia is politically and religiously sensitive. Al-Qaida and other militant groups have used the Gulf kingdom’s close working relationship with U.S. counterterrorism officials to stir internal dissent against the Saudi regime.
The number of attacks on Americans is minuscule compared with the broader toll of the drone campaign, which has killed more than 3,000 militants and civilians in hundreds of strikes in Pakistan, Yemen and Somalia.
The administration has frequently described its domestic and international legal rationales for drone strikes in general terms. The white paper expands those justifications with specific determinations to be made in the case of U.S. citizens.
Most members of Congress agree with administration assertions that the drone campaign has been essential to crippling al-Qaida and its ability to mount large-scale attacks against the United States.
Sen. Dianne Feinstein, D-Calif., the chairwoman of the intelligence committee that will consider Brennan’s nomination, released a statement Tuesday indicating she believes the release of the white paper — apparently done without the consent of the administration — should quell calls for more transparency.
The administration’s legal position “is now public and the American people can review and judge the legality of these operations,” Feinstein said. She has indicated she will support Brennan’s nomination.
Brennan, 57, spent 25 years at the agency and was considered a likely candidate for the CIA job in Obama’s first term.
He withdrew amid mounting opposition from civil-liberties groups that called attention to his role as a senior CIA executive when the agency began using interrogation techniques, including waterboarding, that were subsequently denounced as akin to torture.