Oversight of Drone Program Remains Elusive

      John Brennan’s appearance before the Senate Intelligence Committee on his nomination to be director of the Central Intelligence Agency had the advance buildup of a major Broadway opening. The Feb. 7 hearing was viewed as the long-awaited opportunity to get the Obama administration on the record about its use of drone aircraft for targeted killings of al Qaeda figures abroad. Brennan, who has served as the White House’s top counterterrorism adviser for the past four years, was commonly described as the architect of the drone program.
      Expectations were raised at the start of the week [Feb. 4] when a summary of the Justice Department’s long-sought opinion on the legality of the drone program was leaked to Michael Isikoff, NBC News’ national investigative correspondent. The 16-page DOJ “white paper” set out in greater detail than ever before the administration’s legal case for targeting “senior operational leaders” of al Qaeda, even if the target is a U.S. citizen.
      The leak gave national security advocates and experts grist for debate while waiting for Brennan’s confirmation hearing. With many legal experts faulting the memo as vague on critical definitions, the administration responded two days later by releasing to Intelligence Committee members the actual text of one of the Office of Legal Counsel (OLC) opinions on the issue.
      Despite the hype, the week’s events proved to be mostly a bust for advocates of greater transparency and accountability on the drone program. The OLC opinion was made available only to senators, not to their staffs — prompting a stiff complaint from the committee’s chair, Democrat Dianne Feinstein of California. And Brennan’s three hours-plus in the witness chair provided virtually no new information about the drone program, as Isikoff reported that night.
      Nothing in the week since the hearing suggests that transparency and accountability are any closer. Brennan’s written answers to additional questions from the hearing, released last week [Feb. 15], added nothing but more generalities to his defense of the targeted killing program. And the most concrete proposal for subjecting the drone program to effective oversight — a proposed national security court to vet a kill order — seems likely to die despite what Brennan professed to be the administration’s willingness to consider the idea.
      Brennan assured the Intelligence Committee that the administration has been “very judicious” in the use of “remotely piloted aircraft” to conduct targeted killings. Under relatively friendly questioning by Feinstein, Brennan said the administration does everything possible to minimize innocent casualties, but he declined to give specific figures. And he declined to give any information about the administration’s justification for the September 2011 drone-strike killing of Anwar al-Awlaki, a U.S. citizen-turned-al Qaeda propagandist.
      Outsiders take the administration’s tut-tuts with more than a grain of salt. An in-depth report by the non-profit newsroom Pro Publica says the administration has “drastically” expended the drone program. The report counts 40 drone strikes last year in Yemen alone and seven strikes in Pakistan in the first few days of 2013. The number of innocent casualties is “impossible to know,” the report concludes, but it cites estimates in the hundreds from the center-left New America Foundation and the British-based Bureau of Investigative Journalism. On the eve of the Brennan hearing, the New York Times published an embarrassing account of a drone strike that killed three major al Qaeda figures as they met in Yemen with a vocal opponent of al Qaeda, who also was “incinerated” in the attack.
      For many advocates and observers, the targeting of a U.S. citizen raises difficult legal and policy issues. The Justice Department white paper acknowledges a citizen’s interest in avoiding “erroneous deprivation of his life.” But it says that interest is outweighed by the government’s “compelling” interest in “waging war, protecting its citizens, and removing the threat posed by enemy forces.” Nothing in U.S. law or the international law of war, the white paper concludes, immunizes a U.S. citizen from “a lethal operation” if he is fighting for the enemy.
      The idea of creating a special court to screen such a targeted killing, modeled along the lines of the Foreign Intelligence Surveillance Act court, got a boost at the Brennan hearing from Feinstein as well as Maine’s newly elected independent senator, Angus King. “Having the executive being the prosecutor, the judge, the jury and the executioner all in one is very contrary to the traditions and the laws of this country,” King said. Brennan called the idea “worthy of discussion,” but he went on to list the practical and constitutional difficulties with judicial review of the president’s decision-making as commander in chief.
      National security and presidential power hawks — for example, John Yoo, head of OLC during the Bush administration, writing in an op-ed in the Wall Street Journal — second those concerns. From an opposite perspective, some civil liberties-minded experts and commentators, including Garrett Epps, legal affairs columnist for The Atlantic, view a judicial role as likely to be of little use and potentially dangerous by injecting the courts into treacherously political decisions. Federal judges appear to be less than enthusiastic as well. “A very bad idea,” writes retired federal judge James Robertson in an op-ed in the Washington Post. With little support outside the political left, the national security court seems to be an idea whose time has not come — nor ever will.