Sen. Ron Wyden has spent two years demanding that the Obama administration share its legal opinions justifying the targeted assassinations of suspected American terrorists abroad. After all, as a member of the Intelligence Committee, the Oregon Democrat is entitled (and cleared) to know. How can his panel provide oversight if officials won’t say what legal authority they have, let alone in which countries it applies? The White House has spent those two years stonewalling. “The administration’s position is basically, ‘Trust us,’” Wyden tells National Journal. “Nowhere in the charge to the committee does oversight get defined as trusting the executive branch of the United States.”
In part, Wyden is just a recent victim of a shift in constitutional power that has been going on for decades, back to when President Truman ordered forces into Korea without congressional approval. But today’s covert war—in which spies and soldiers kill people without trial—establishes new terrain somewhere between military and intelligence activities. Here, the executive branch feels compelled to protect its security interests at the same time that Congress has the constitutional power to declare and oversee war. And rather than explain why it considers its tactics legal even off the battlefield, the White House simply claims authority to do as it pleases under the Authorization of Use of Military Force passed by Congress after the Sept. 11 attacks. “Without real public accountability,” says former Rep. Lee Hamilton, a cochairman of the 9/11 commission who now directs Indiana University’s Center on Congress, “the president has the power to kill people any time, based on a secret process. That, as far as I’m aware, is unprecedented.”
President Obama’s refusal to declare or explain his legal right to kill follows White House tradition. According to reports, President Clinton secretly authorized the assassination of Osama bin Laden, his lieutenants, and possibly even unconnected people. As Columbia Law School professor Matthew Waxman explains, “There is no clear legal requirement that the executive branch turn over to Congress its legal reasoning, and the executive branch always maintains a very protective stance of that kind of internal deliberation.” This tension will be on display when counterterrorism adviser John Brennan goes before the Senate on Thursday for hearings on his nomination as CIA director. Wyden intends to press the key architect of the drone-strike program for answers.
History suggests that, by including Congress in its thinking, the White House might forestall some major headaches. In 1974, The New York Times exposed a secret domestic-spying operation—run by the CIA in violation of its charter—to probe Americans’ contact with foreign agents. A special Senate committee headed by Democratic Sen. Frank Church of Idaho revealed other agency abuses, including programs to assassinate foreign leaders. The uproar led to the creation of the House and Senate Intelligence committees.
Even with that check, presidents have failed to inform members of Congress about secret interpretations of federal laws—often at their peril. Take the Iran-Contra affair, when Reagan administration officials skirted Congress (and an arms embargo) by selling weapons to Iran and training militants to topple Nicaragua’s government. Or President Bush’s interpretation of surveillance law after 9/11, which gave birth to the warrantless-wiretapping program. Or the secret memos claiming that “enhanced interrogation techniques” such as waterboarding could be legal in some cases. Each time, the press reported the scheme, then ensuing congressional hearings embarrassed the White House and disturbed the public. Something similar could play out if the press uncovers (and pokes holes in) the memos that justify killing Americans abroad, such as the Yemen-based cleric Anwar al-Awlaki and Samir Khan, who ran a Qaida magazine but was reportedly not on a specific “kill list.”
Officials, including Brennan, have publicly defended the drone strikes (which have killed about 2,500 people in Pakistan alone) as legal and ethical means to take out enemy combatants if they pose an imminent threat to the United States and can’t be captured. And war-weary Americans largely support this effective tactic that does not require boots on the ground. In a September survey by the Pew Research Center, more than 60 percent said they approve of the drone campaign targeting extremists in places like Pakistan, Somalia, and Yemen.
But civil libertarians, here and abroad, are outraged. Last week, the United Nations Human Rights Council announced an investigation into the drone strikes, with special investigator Ben Emmerson calling for the targeted-killing program to be brought within the framework of international law. Most countries and international lawyers outside the United States, Emmerson pointed out, reject Brennan’s argument that Washington may legally use the tactic to defend the nation against a stateless enemy. Rather than leave this task to outsiders, Congress itself could make sure the legal framework checks out.
After past counterterrorism scandals, the White House could reap another possible benefit from spelling out its justification, says Columbia’s Waxman: avoiding the perception that its legal analysis is part of a cover-up. If someone like Wyden, viewed as an ardent protector of civil liberties, signs off on the rationale, Waxman says, “that would add some validation of the legitimacy of the program.”
The White House, CIA, and Justice Department declined to comment for this story, but Congress has ways to force the executive branch to bend to its will: It could subpoena administration officials, withhold money for the program, or stall legislation the White House wants. This hasn’t happened—yet. But Wyden has not ruled out another tool at his disposal: holding up Brennan’s nomination. “If the Congress doesn’t get answers to these questions now,” the senator says, “it’s going to be very hard to get them in the future.”
This article appears in the Feb. 2, 2013, edition of National Journal as Too Hot to Handle.