Congress Wants To See Obama’s “License To Kill”

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 onintelligence 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. guilhermepaixaous.blogspot.com 

A stunning report in the New York Times depicted President Obama poring over the equivalent of terrorist baseball cards, deciding who on a "kill list" would be targeted for elimination by drone attack. The revelations – as well as those in Daniel Klaidman's recent book – sparked public outrage and calls for congressional inquiry.

Yet bizarrely, the fury is targeted at the messengers, not the message. Sen. John McCain (R-Ariz.) expressed dismay that presidential aides were leaking national security information to bolster the president’s foreign policy credentials. (Shocking? Think gambling, Casablanca). Republican and Democratic senators joined in condemning the leaks. Attorney General Eric H. Holder Jr. – AWOL in the prosecution of rampant bank fraud – roused himself to name two prosecutors to track down the leakers.

The problem isn't the leaks, it's the policy. It's the assertion of a presidential prerogative that the administration can target for death people it decides are terrorists – even American citizens – anywhere in the world, at any time, on secret evidence with no review.

Most Americans support the drones – after all they're going after terrorists. But the administration is claiming the right to charge, try and execute an American citizen without a hearing or a trial and conviction. The Constitution, Attorney General Holderargues, "guarantees due process, not judicial process." But once more, this tramples the entire framework of the Bill of Rights, which was devised to limit the power of the state to lock up political dissenters without an independent tribunal.

It is vital that Congress reassert its constitutional authority. In the 1952 Steel Seizure case, Justice Felix Frankfurter argued that "a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned … may be treated as a gloss on the executive power" vested in the president by the Constitution. The practice doesn't just become legal, it becomes part of the Constitution, and Congress cannot thereafter challenge the authority that has been ceded. 

Over twenty legislators led by Rep. John Conyers (D-Mich.), the ranking Democrat on the House Judiciary Committee, and Rep. Dennis Kucinich (D-Ohio) have written formally to the president asking that he explain openly "the process by which signature strikes are authorized and executed; the mechanisms used to ensure such killings are legal;" and the mechanisms to track civilian casualties. The Congress should also insist that the Justice Department memo detailing the legal arguments relied on by the president be made public. And then Congress needs to hold a grand inquest on presidential war powers and the rights of both the Congress and American citizens. The Washington Post