Despite President Obama’s pledge in his State of the Union address to make the drone program “even more transparent to the American people and to the world,” his administration continues to resist efforts by Congress, even from fellow Democrats, to obtain the full range of classified legal memos justifying “targeted killing.”
A key reason for that reticence, according to two sources who have read the memos or are aware of their contents, is that the documents contain secret protocols with foreign governments, including Pakistan and Yemen, as well as “case-specific” details of strikes.
A legal expert outside the government who is intimately familiar with the contents of the memos said the government-to-government accords on the conduct of drone strikes are an important element not contained in the Department of Justice “white paper” revealed recently by NBC News. He said it is largely in order to protect this information that the targeted-killing memos drafted by the DoJ’s Office of Legal Counsel (OLC) are not being released, and that even the Senate and House intelligence committees have been allowed to examine only four of the nine OLC memos.
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“That is what is missing from the white paper but forms a core part of memos,” the expert told National Journal, speaking on condition of anonymity because the information is classified. He said the administration believes that the protocols would almost certainly leak to the public if they were shared with Congress.
A senator who sits on the Intelligence Committee and has read some of the memos also said that the still-unreleased memos contain secret protocols with the governments of Yemen and Pakistan on how targeted killings should be conducted. Information about these pacts, however, were not in the OLC opinions the senator has been allowed to see. The senator, who also would speak to National Journal only on condition of anonymity, said the only memos that the committee has been given represent mainly legal analysis justifying the drone strikes, and that the rest contain “case-specific” facts about operations.
It’s not clear how many such secret government-to-government protocols exist. At least some were made with since-deposed dictators such as Ali Abdullah Saleh of Yemen. Others may have been signed with the leaders of Algeria and Mali, the legal expert said. Given the widespread unpopularity of the drone program, the disclosure of these agreements could prove extremely embarrassing both for the United States and partner governments. That’s especially true of Pakistan, where Islamabad’s troubled military alliance with Washington and an intense U.S. drone campaign against Taliban and al Qaida targets have provoked fierce anti-Americanism.
Even so, last fall, the newly elected leader of Yemen, Abdu Rabbu Mansour Hadi, actually endorsed the U.S. drone program that takes place within his borders. “They pinpoint the target and have zero margin of error, if you know what target you’re aiming at,” Hadi said at the Woodrow Wilson Center in Washington.
Asked about the existence of such protocols, Tommy Vietor, a White House spokesman, said he had no comment but added: “We are having conversations with members of Congress about their requests, and we will continue those conversations.”
The memos released so far largely deal with the legal reasoning behind targeting U.S. citizens abroad who have joined hostile action against the United States, especially radical cleric Anwar Al-Awlaki, who was killed by U.S. drone strikes, along with his teenage son, in 2011. The Justice Department white paper summed up many of those arguments, which were drafted by former OLC staffers Martin Lederman and David Barron, among other lawyers. The white paper concludes, controversially, that the U.S. government can order the killing of American citizens if they are believed to be senior leaders of al-Qaida or "an associated force," even if there is no evidence of an imminent plot against the U.S.
In a statement last week, the chairwoman of the Senate Intelligence Committee, Dianne Feinstein, D.-Calif., said her staff knew of a total of nine OLC memos but had only seen four of them. She said it was only in recent days that “senators on the committee were finally allowed to review two OLC opinions on the legal authority to strike U.S. citizens.” Feinstein added: “We have reiterated our request for all nine OLC opinions—and any other relevant documents—in order to fully evaluate the executive branch’s legal reasoning, and to broaden access to the opinions to appropriate members of the committee staff.”
An Obama administration official who is familiar with the negotiations with Feinstein’s committee indicated that the White House was miffed at efforts by the senator and her staff to obtain all the memos at once, because such efforts play into the Republican strategy of using the dispute to delay the confirmation of John Brennan, Obama’s nominee to head the CIA and the main architect of the drone program, as well as Chuck Hagel as Defense secretary.
“These guys don’t even know what the hell they’re asking for,” the official said. “They think they can ‘reverse-engineer’ the [drone] program by asking for more memos, but these are not necessarily things that exist or are relevant … What they’re asking for is to get more people read into very sensitive programs. That’s not a small decision.”
The administration is engaged in a serious internal debate over the release of more information, with Harold Koh, the State Department legal advisor, said to be in favor of doing so and other officials aligned with the CIA still somewhat opposed. Under the CIA, the program has been covert, making the administration’s efforts at transparency all the more difficult—one reason that Brennan is said to want to shift responsibility over to the Pentagon.
A former State Department legal counsel said that even if the memos contain secret protocols, there’s no reason why that information couldn’t be “redacted” and the rest of the memos released. “The White House and DoJ have redacted especially sensitive information in other cases,” he said, in particular during the George W. Bush administration.