WASHINGTON — The Obama administration Wednesday directed the Justice Department to release classified documents discussing the legal justification for the use of drones in targeting U.S. citizens abroad who are considered terrorists to the two congressional intelligence committees.
The announcement appears to refer to 2010 memos from the Justice Department’s Office of Legal Counsel justifying the killing of Anwar al-Awlaki, a U.S.-born cleric who had joined al-Qaida in Yemen. He was killed in a CIA drone strike in September 2011. Members of Congress have long demanded access to the memorandum.
The decision to release the legal memos to the intelligence committees came under pressure, two days after a bipartisan group of 11 senators joined a growing chorus asking for more information about the legal justification for targeted killings, especially of Americans. The announcement also came on the eve of the confirmation hearing scheduled for Thursday for John Brennan, President Obama’s choice to be director of the CIA. Brennan was the chief architect of the drone program as Obama’s counterterrorism adviser.
Until Wednesday night, the administration had refused to even officially acknowledge the existence of the documents, which have been reported about in the media. This week, NBC News obtained an unclassified, shorter legal memo, described as a “white paper,” that officials said described the legal framework that officials follow in using the drones.
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Administration officials said Obama had decided to take the action — which they described as extraordinary — out of a desire to involve Congress in the development of the legal framework for the use of drones. Aides noted that Obama had made a pledge to do that during an appearance on “The Daily Show” last year.
“Today, as part of the president’s ongoing commitment to consult with Congress on national-security matters, the president directed the Department of Justice to provide the congressional intelligence committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice white paper,” said an administration official who requested anonymity.
The official said members of the intelligence committees would now get “access” to the documents.
Christopher Anders, senior legislative counsel for the American Civil Liberties Union (ACLU), called the president’s move “a small step in the right direction.” But he noted that the legal memo or memos were not being shared with either of the armed services committees, which have jurisdiction over Pentagon strikes, or the judiciary committees, which oversee the Justice Department.
The Senate Intelligence Committee is expected to closely question Brennan about his role in the drone program during his confirmation hearing. Sen. Ron Wyden, D-Ore., who sits on the committee, said in a phone interview that he had been working in his office on questions for Brennan about 6:30 p.m. Wednesday when Obama called him and said “effective immediately he was going to make the legal opinions available and he also hoped that there could be a broader conversation.”
Wyden has repeatedly called on the administration to release its legal memorandums laying out the scope and limits of what the executive branch believes it has the power to do in national-security matters, including the targeted killing of a citizen. Earlier Wednesday, at a Democratic retreat in Annapolis, Md., he had vowed 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,” hinting at a potential filibuster of Brennan.
The intelligence committees were created in the late 1970s to exercise oversight after a series of scandals at the spy agencies. The law requires that the committees be kept informed of intelligence activities. But most administrations withhold at least some legal opinions, treating them as confidential legal advice to the president and agency officials.
The use of unmanned drones in the war against terrorism has significantly escalated under Obama, who has used them to target the leadership of al-Qaida and al-Qaida affiliates. He has hailed his administration’s success in killing many of the terrorist organization’s senior ranks and undermining its ability to attack America.
But there have been questions about how targets are chosen, especially when it comes to U.S. citizens who the government says have taken up arms against their country as part of al-Qaida or other terrorist organizations.
Obama and administration officials have said they are pursuing a “legal framework” for those decisions, and some top officials have given speeches describing that framework. The unclassified white paper that was revealed this week had been provided to members of Congress but had not been released publicly.
White House spokesman Jay Carney was asked Wednesday morning whether the president owed the public a “clearer explanation” about the standards the government must meet before it uses the drones to kill Americans overseas. He called that an “excellent question.”