BUZZARDS BAY, Mass. — John Brennan, President Barack Obama’s nominee to head the Central Intelligence Agency, got the nod from the Senate Intelligence Committee on Tuesday. In a closed-door session the secretive body voted to confirm Brennan, 12 to 3.
But even as Brennan edged closer to the goal, controversy over Obama’s drone wars threatened to derail the process, with the US attorney general suggesting that the president has the authority to use lethal military force against US citizens on American soil.
Most observers expect that Brennan, a respected intelligence veteran who is currently serving as the president’s counterterrorism adviser, will ultimately be confirmed. A vote before the full Senate could come by the end of the week.
But Brennan’s reputation as the principal architect of the “kill lists,” which identify targets for drone strikes, has set off a heated debate within the legislature.
Several senators had demanded that Obama release documents from the Office of Legal Counsel outlining the justification for the strikes, especially when they target US citizens who are not on the field of battle.
To date, three US citizens have been killed by drones in Yemen.
Sen. Dianne Feinstein indicated on Monday that the White House had provided the necessary information, and scheduled the committee vote on Brennan.
But just as it seemed that the controversy was losing some of its steam, an exchange of letters between a senator and the attorney general reignited the debate.
Sen. Rand Paul (R- Ky.) had vowed to hold up Brennan’s confirmation until he received an answer to what he saw as a simple yes-no question.
On Feb. 20, he sent a letter to Brennan demanding to know his views on whether "the president has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial."
The answer came on Monday, but not from the nominee; instead, the letter sent to Paul was signed by Attorney General Eric Holder, who maintained that the president did, in fact, have such authority.
“It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the president to authorize the military to use lethal force within the territory of the United States,” wrote the attorney general.
Holder did emphasize that this was unlikely.
“The US government has not carried out drone strikes in the United States and has no intention of doing so,” he said. “As a policy matter, moreover, we reject the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.”
But Holder reserved the right to make a decision based on circumstances, rather than issue a blanket policy against drone strikes against US citizens on American soil. These were extraordinary times, he reminded the senator.
“For example, the president could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on Dec. 7, 1941, and Sept. 11,2001.
“Were such an emergency to arise, I would examine the particular facts and circumstances before advising the president on the scope of his authority.”
Paul was not overly pleased by the reply.
“The US attorney general’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening — it is an affront the constitutional due process rights of all Americans,” he said in a statement issued Tuesday.
To confuse the issue further, Brennan seemed to distance himself from the attorney general’s position. According to Paul, Brennan sent a separate letter, saying that the CIA does not have the power to authorize such operations.
This did not mollify the senator, however.
“Notably missing from Mr. Brennan's response are answers to the myriad other questions Sen. Paul posed to him in previous correspondence,” read the statement.
The ultra-conservative senator from Kentucky is not alone in his opposition to the president’s increasingly broad powers to conduct drone strikes.
Ron Wyden, a liberal Democrat from Oregon who is a member of the Senate Intelligence Committee, has also voiced his discomfort with the White House policy, and had joined Paul and several other senators from both parties in asking for more information.
But Wyden insisted that he was satisfied with the White House’s response, and a brief moment of bipartisanship in the deeply polarized Congress has faded.
“The administration has now provided the Senate Intelligence Committee with full access to documents outlining the president’s authority to conduct targeted killings of Americans in counterterrorism operations,” he said in a statement issued shortly before the committee voted on Tuesday. “We are pleased that we now have the access that we have long sought and need to conduct the vigilant oversight with which the committee has been charged."
This controversy has been brewing for weeks, and has held up Brennan’s confirmation at a particularly sensitive time. The administration is taking heat, not only from the legislature, but from many who see the constantly widening powers being claimed by the executive branch as a threat to civil liberties.
In February, a leaked Justice Department memo set out the legal framework under which the executive branch can order the targeted killing of a US citizen outside a battleground area.
The reasoning was, according to some experts, overly broad and much too vague, giving the government virtually unchecked powers to kill its own citizens without the due process supposedly guaranteed to them under the Constitution.
“Some of the white paper's key legal arguments don't stand up to even cursory review,” wrote Jameel Jaffer, deputy legal director for the American Civil Liberties Union, in a blog posted on the group’s website at the time.
“According to the white paper, the government has the authority to carry out targeted killings of US citizens without presenting evidence to a judge before the fact or after, and indeed without even acknowledging to the courts or to the public that the authority has been exercised. Without saying so explicitly, the government claims the authority to kill American terrorism suspects in secret.
The nomination will now advance to the full senate, but the deeply divided body is threatening to use the well-worn filibuster to delay the confirmation, requiring 60 votes to get Brennan through instead of a simple majority.
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Several senators, including Paul, have said they will block the vote until the White House divulges more information on the Sept. 11 attacks in Benghazi, Libya, which killed four Americans including Ambassador Chris Stevens.
This is making Senate Majority Leader Harry Reid very unhappy.
“At a time when America faces so many threats abroad, it is crucial that we have a talented and dedicated individual like John Brennan leading our nation’s most prominent intelligence agency,” Reid told reporters Tuesday. “Yet, Republicans again and again interject politics into the confirmation process.”
Brennan will almost certainly be confirmed. But the debate over drones, like the partisan warfare within the legislature, is unlikely to subside any time soon.