White House homeland security adviser John O. Brennan is expected to face tough, new questions about the U.S. use of drones to target Americans suspected of terrorism, when he appears Thursday before a Senate committee considering his nomination to serve as CIA director.
A newly revealed government memo makes clear just how broad the legal justification is for the targeted killings — which are the Obama administration's signature counter-terrorism program. The memo has rekindled concern on Capitol Hill about the program, with many Democrats questioning the White House justification for the drone attacks on American terrorist targets.
The White House defended the program Tuesday as "legal," "ethical" and "wise."
Sen. Mark Udall, Colorado Democrat, said the memo "does not … answer specific questions regarding the scope of the authority and the threshold for evidence" involved in deciding to target an American.
"I believe that Congress, at a minimum, should be privy to the actual opinions that authorize lethal action," he added.
Sen. Angus S. King, a member of both the Senate Armed Forces and Intelligence committees, said he "believes that the use of lethal force against Americans is a serious and significant issue that deserves paramount attention," a spokeswoman for the Maine independent said.
Mr. King asked for a full review of the U.S. military's targeted-killing program last week during a confirmation hearing for former Sen. Charles Hagel, the Nebraska Republican President Obama nominated to serve as defense secretary.
Mr. King is also "very interested to hear Mr. Brennan's responses" on the issue during his confirmation hearing before the Senate Intelligence Committee, the aide said.
The hearing comes amid intensifying scrutiny of the use of drones, both domestically and overseas.
Last month, British attorney Ben Emmerson, the U.N. special rapporteur on counter-terrorism, launched an inquiry into the civilian impact of U.S. drone strikes in Pakistan and Yemen. Local media reports in both countries say that innocent bystanders are often killed in the strikes, fueling anti-American sentiment and helping extremists recruit.
On Monday, the Virginia city of Charlottesville become the first local jurisdiction in the United States to formally pass a resolution against the use for domestic intelligence or law enforcement of drones.
The resolution calls on Congress and the Virginia General Assembly "to adopt legislation prohibiting information obtained from the domestic use of drones from being introduced into a federal or state court, and precluding the domestic use of drones equipped with" weapons.
Eleven U.S. senators from both parties wrote to Mr. Obama this week, warning that the continued secrecy surrounding the targeted-killing program might prove an obstacle to Mr. Brennan's confirmation. They included Mr. Udall and felow Democrat Ron Wyden of Oregon and Republican Susan Collins of Maine. All three are members of the Senate Intelligence Committee.
The senators said they want to see the legal opinions underlying the administration's claim that it is legal and constitutional for the president to order the death of a citizen without charge or trial if they have taken up arms against the United States.
They said those documents will allow lawmakers and the public "a full understanding of how the executive branch interprets the limits and boundaries of this authority … and whether the president's power to deliberately kill American citizens is subject to appropriate limitations and safeguards."
"The executive branch's cooperation" in making these opinions available "will help avoid an unnecessary confrontation that could affect the Senate's consideration of nominees for national security positions."
Mr. Brennan is widely seen as the architect of the administration's targeted-killing program, which uses Predator drones operated by the CIA and armed with Hellfire missiles to strike individuals believed to be al Qaeda leaders.
Mr. Brennan was the official the administration chose last year to publicly acknowledge the existence of the program. Drone attacks have killed at least three Americans so far: Islamic preacher Anwar Awlaki, a senior leader in al Qaeda in the Arabian Peninsula; his 16-year old son Abdulrahman Awlaki; and propagandist Samir Khan.
Monday night, NBC News obtained a copy of a confidential but unclassified Justice Department white paper, laying out the legal basis for targeting americans under the program. The paper was prepared for members of congress last year on condition they did not disclose its existence or discuss its contents.
The paper lays out the conditions under which the president may order the lethal targeting of a U.S. citizen who is an "operational leader" of al Qaeda, who cannot feasibly be captured and who poses an "imminent threat" to the United States.
Mr. Brennan sketched out this justification last year, but the white paper gives more details and reveals how broad the circumstances are under which President Obama claims the right to act.
"The condition that an operational leader presents an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future," the paper states.
"Informed, high-level" officials can determine the target poses "an imminent threat of violent attack against the United States" if they had "recently" been involved in acts of terrorism and there was no evidence they had renounced violence, the paper said.
The paper also says that for a lethal strike to be legal, officials must judge that it is "infeasible" to capture the target. But it adds that a capture is considered "infeasible" if an attempt would pose an "undue risk" to U.S. personnel.
The White House defended the program Tuesday.
"We conduct those strikes because they are necessary to mitigate ongoing actual threats, to stop plots, to prevent future attacks and … save American lives," said spokesman Jay Carney.
"These strikes are legal. They are ethical, and they are wise."
Civil rights advocates also criticized the White House justification for the program and compared them to harsh interrogation methods used against terrorist suspects under former President George W. Bush.
"The parallels to the Bush administration torture memos are chilling," said attorney Pardiss Kebriaei of the Center for Constitutional Rights.
Intelligence Committee Chairwoman Dianne Feinstein, California Democrat, reiterated cautious support for the program Tuesday.
"The American people can review and judge the legality of these operations," she said.
Mrs. Feinstein noted that Awlaki had directed the failed attempt to blow up an airliner on Christmas in 2009 and was responsible for other attempts to blow up U.S. cargo planes.
"He was actively plotting and recruiting others to kill Americans until the time of his death," she said.
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