Congress Wants to See Obama's "License to Kill"

Congress is finally standing up to President
Barack Obama on targeted killing. Almost a
year after three American citizens were killed
in US drone strikes, legislators are pushing the
administration to explain why it believes it's
legal to kill American terror suspects overseas.
Congress is considering two measures that
would compel the Obama administration to
show members of Congress what Sen. Chuck
Grassley (R-Iowa) calls Obama's "license to
kill": internal memos outlining the legal
justification for killing Americans overseas
without charge or trial. Legislators have been
asking administration officials to release the
documents for nearly a year, raising the issue
multiple times in hearings and letters. But the
new proposals, including one from Sen. John Cornyn (R-Texas) first flagged by blogger Marcy
Wheeler and another in a separate intelligence bill, aren't requests—they would mandate
disclosure. That shift shows both Republicans and Democrats are growing impatient with the
lack of transparency on targeted killings.
After radical American-born cleric Anwar al-
Awlaki, alleged American Al Qaeda
propagandist Samir Khan, and Awlaki's 16-
year-old son, Abdulrahman, were killed by
drone strikes in Yemen in September and
October of last year, Republican and
Democratic members of Congress sent letters
asking the Obama administration to explain the
legal justification for targeted killing of
American citizens. "We got a license to kill
Americans, and we don't know the legal basis
for the license to kill Americans…because our
letters haven't been answered," Grassley
complained during a Senate Judiciary
Committee hearing last week.
The New York Times has confirmed the
existence of a secret memo from the Justice
Department's Office of Legal Counsel (OLC)—
the branch of the government that tells the
president whether what he wants to do is legal—outlining the legal basis for the targeted killing
program. But the Obama administration has yet to acknowledge that any such memo exists,
despite defending the targeted killing policy in speeches and public
appearances, and is currently fighting an American Civil Liberties Union lawsuit that seeks to
force the government to reveal the legal justification for targeted killing. Now Congress seems
to be moving towards the ACLU's position.
Cornyn's amendment would require the Obama administration to provide the Office of Legal
Counsel memo justifying the killing program to legislators on several congressional
committees. Democrats on the Judiciary Committee voted to shelve Cornyn's proposal, but that
doesn't mean the effort is dead. Cornyn could propose his amendment again later this year, and
there's also a section of a separate intelligence bill that would compel the administration to
share all of the Justice Department's legal opinions on intelligence matters with the
congressional intelligence committees— unless the White House invokes executive privilege.
"We're not mere supplicants to the executive branch, we are a coequal branch of government,"
Cornyn said during discussion of his amendment in the Senate committee hearing last week. "So
it is insufficient to say pretty please, Mr. President, pretty please, Mr. Attorney General, will you
please tell us the legal authority by which you claim the authority to kill American citizens
abroad?" (Cornyn also noted that just because he wants to see the memo doesn't mean he'd
necessarily disagree with its contents.)
Neither Cornyn's proposal nor the intelligence bill would require the administration have to
share the OLC memo with the media or the public, even in redacted form. But releasing the
memo to legislators would at least allow Congress to perform more effective oversight of the
targeted killing program, argues Chris Anders, legislative counsel for the ACLU. The Los
Angeles Times reported in June that at the initiative of Sen. Dianne Feinstein (D-Calif.), who
chairs the Senate Select Committee on Intelligence, Congress has been keeping a closer eye on
the use of drone strikes. But critics like Anders argue that it's hard for oversight to be effective if
legislators don't know what standard the Obama administration is using to determine whom to
kill. "The key committees of Congress don’t even know what the legal standard is or how they’re
applying it, so how can they do meaningful oversight?" Anders asks. The intelligence bill and
Cornyn's proposal could fix that problem.
More oversight, though, is not enough, Anders says—regular Americans should know what kind
of conduct could lead to them being blown up by a deadly flying robot. "There's a fundamental
due process right to know what it is you can't do in order to avoid getting killed by the order of
the president," he says. Grassley, at least, seems to be on board with that idea—a Grassley aide
said the senator would "support making a redacted analysis public if possible." A Feinstein aide
also suggested a push for public disclosure could follow Congress getting access to the legal
analysis of targeted killing. And even if the OLC memo is only shared with Congress, broadening
access to the document makes it more likely that it could be leaked to the press.
Now that legislators on both sides of the aisle are pushing for more disclosure, the chances the
public will learn about the contents of the targeted killing memos has increased dramatically.
Still, Anders says, it's easy to see a difference between how hard Congress pushed for George
W. Bush-era memos authorizing torture and the deferential stance Congress adopted during the
first three and a half years of the Obama administration.
"When it was Bush, it was much easier to get [legislators] to demand public disclosure," Anders
says.