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John Brennan faces grilling over leaked drone memo as senators demand answers

Nominee for CIA director set for tough confirmation questions from senators angered by lack of White House clarity on drones

John Brennan, Barack Obama’s nominee for CIA director, will come under renewed pressure at his confirmation hearing on Thursday to justify the targeted killing of US citizens in drone strikes, following the leak of a secret summary of the White House rationale for one its most controversial policies.

Senators angered by the lack of transparency over the legal basis for targeting Americans are planning to demand more details from Brennan, currently the White House counter-terrorism chief and a key architect of Obama’s drones policy.

The white paper, leaked on Monday night and dating from 2011, was shown to senators several weeks ago, but failed to allay their concerns. It was made public by NBC and justifies the killing of those US citizens who hold senior positions in al-Qaida and pose an “imminent threat of violent attack” against America.

The white paper also provides some detail of the legal framework under US and international law for the drones policy, including that the US is at war with al-Qaida. But it has come under criticism from human rights groups for making too broad a case for killing, rather than capturing, suspected American and foreign terrorists.

Eleven senators wrote to the president on Monday demanding the administration hand over all legal justifications for killing US citizens by drones. They are pressing to see a more detailed 50-page memorandum from the office of legal counsel.

The letter, signed by eight Democrats and three Republicans, hints at confrontation over Brennan’s appointment if the administration does not co-operate.

“We ask that you direct the Justice Department to provide Congress, specifically the judiciary and intelligence committees, with any and all legal opinions that lay out the executive branch’s official understanding of the president’s authority to deliberately kill American citizens,” the letter said.

“The executive branch’s co-operation on this matter will help avoid an unnecessary confrontation that could affect the Senate’s consideration of nominees for national security positions.”

The letter notes that the president has previously promised to share with Congress information that he cannot make public for national security reasons.

A congressional staff member with knowledge of the issue said Brennan is likely to face detailed questioning about the legal basis for a drones policy he helped forge.

“The white paper raised a lot of questions that can only be answered by access to the detailed legal justifications the administration has consistently refused to share [with Congress],” he said. “John Brennan is at the heart of this policy. It would be my expectation he will face a lot of questions. There’s no national security issue around a legal opinion. There is no reason why Americans cannot know the legal basis for the administration killing Americans.”

Senator Ron Wyden of Oregon gave a foretaste of the questioning Brennan is likely to receive when he wrote to the counter-terrorism chief asking for the legal basis and practical rules for the targeting of US citizens by drone.

“For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions that explain the executive branch’s understanding of this authority represents an alarming and indefensible assertion of executive prerogative,” Wyden said in the letter.

Wyden attached a list of specific questions to the letter including:

How much evidence does the president need to determine that a particular American can be lawfully killed?

Does the president have to provide individual Americans with the opportunity to surrender before killing them?

Senior officials have stated that the use of lethal force is permitted in situations where capture is not feasible. What standard is used to determine whether it is feasible to capture a particular American?

Wyden was also frustrated that the administration would not tell Congress which countries drone attacks were being carried out in. The white paper has drawn criticism from human rights groups, which say its legal justifications for drone strikes are ill-defined.

Andrea Prasow, senior counter-terrorism counsel for Human Rights Watch, said she was particularly troubled by the white paper’s claim that a person would only be killed when it was not feasible to capture them.

She said the policy was a deception. “The US government has said that it will capture someone where feasible rather than immediately target them. But when you read the white paper you realise that they really mean when capture is feasible at the same moment they think killing the person is,” she said.

“By affirmatively saying to the public that the US government seeks to capture people rather than kill them they’ve set a standard they should be held to. But when you actually read the legal authorisation you realise they have defined themselves out of the standard.”

Prasow also said the white paper reveals that the Obama administration has effectively shunned international law.

“What is striking about the white paper is that it doesn’t seek to track international law. It tracks US law. When the US is engaging in lethal conduct in other nations it must be in compliance with international law, and the white paper doesn’t suggest that it takes that requirement seriously. The US government has repeatedly talked about compliance with lawful principles, and the white paper says that. But that’s different from complying with the laws of war,” she said.

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