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Senate Intelligence Chairwoman Dianne Feinstein said Tuesday that a Justice Department legal memo on using drone strikes against U.S. citizens suspected of terrorism has allowed her panel to conduct oversight of the controversial practice.
But the California Democrat also said her committee continues to seek actual legal opinions, as opposed to the memo, 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,” which only summarizes the legal reasoning.
NBC News first reported Monday night on the contents of the memo, a white paper provided to the Intelligence and Judiciary Committees last June.
The memo’s disclosure comes at a sensitive time for the Obama administration. It has ramifications for the nomination of John O. Brennan to lead the CIA, whose confirmation hearing is Feb. 7, and who, as the top White House counterterrorism and homeland security adviser, has guided the administration’s drone strike policy.
A growing number of lawmakers have demanded access to the Justice Department Office of Legal Counsel legal opinions in light of changeover in Obama’s national security team, particularly the nomination of Brennan.
“The white paper (along with other documents and briefings) has allowed the Intelligence Committee to conduct appropriate and probing oversight into the use of lethal force,” Feinstein said in a news release. “That oversight is ongoing, and the committee continues to seek the actual legal opinions by the Department of Justice that provide details not outlined in this particular white paper.”
The Justice Department white paper sets forth three conditions under which the United States can conduct an operation using lethal force against a U.S. citizen who is a senior leader of al-Qaida or an “associated force” in a foreign country: “(1) an informed, high level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible; and (3) the operation would be conducted in a manner consistent with applicable law of war principles.”
The paper calls for a broad definition of “imminence,” as waiting until an attack is about to be carried out could risk American lives. Its standard of “feasibility of capture” includes conditions such as the possibility of risk to U.S. personnel or the refusal of a relevant country to consent to capture.
Although the document does not mention Yemeni cleric and U.S. citizen Anwar al-Awlaki by name, a drone strike that killed him in September of 2011 was one of the impetuses for Congress’ concerns about how such strikes are used. Feinstein suggested that Awlaki, who was affiliated with Al-Qaida in the Arabian Peninsula, posed a direct threat.
“As President Obama said at the time of his death, Aulaqi was the external operations leader for AQAP,” Feinstein said. “He directed the failed attempt to blow up an airplane on Christmas Day in 2009 and was responsible for additional attempts to blow up U.S. cargo planes in 2010. He was actively plotting and recruiting others to kill Americans until the time of his death in Yemen.”
The document’s disclosure might serve the purpose, as Feinstein said, of giving the public the opportunity to “review and judge” the legality of such operations, and depending on the reception, could stifle some of the momentum for critics of the program as Brennan’s hearing nears.
But a number of senior senators have requested the underlying legal opinions that contain details not found in the white paper, including those who serve on the committees that received the white paper. On Monday, 11 senators — including the bipartisan leaders of the Judiciary Committee and three members of the Intelligence Committee — sent a letter to President Barack Obama again demanding the legal opinions.
The document’s contents did not assuage concerns from the American Civil Liberties Union. Jameel Jaffer, deputy legal director of the ACLU, said “the paper only underscores the irresponsible extravagance of the government’s central claim,” and that its broad definitions of “imminence” and “feasibility,” as well as its claim that there is no judicial forum can evaluate the constitutional considerations, are reckless.
House Intelligence Chairman Mike Rogers, R-Mich., said he supported the thrust of the memo.
“I agree with the Justice Department’s conclusion that targeting a senior leader of al-Qa’ida is a lawful act of national self-defense in these circumstances,” he said in a news release. “When an individual has joined al-Qa’ida — the organization responsible for the murder of thousands of Americans — and actively plots future attacks against U.S. citizens, soldiers, and interests around the world, the U.S. government has both the authority and the obligation to defend the country against that threat.”