The letter poses questions about executive power, like "How much evidence does the President need to determine that a particular American can be lawfully killed?" and "Does the President have to provide individual Americans with the opportunity to surrender before killing them?" We're used to such questions from organizations like the ACLU, journalists like Charlie Savage, and various concerned citizens. And though rules that confer death should always be transparent, the fact that they're being kept even from Wyden is especially indefensible.
The body he sits on, the U.S. Senate Select Committee on Intelligence, is charged with providing "vigilant legislative oversight over the intelligence activities of the United States," to ensure "that they conform with the Constitution and U.S. law." There is no one in America more justified in demanding to know the official legal rationale behind actions like targeted killings. Obama isn't just keeping this information from the American people. He isn't just hiding his legal reasoning from the U.S. Congress. He is stonewalling one of 15 senators that federal law establishes as the most important check on secret abuses by the CIA.
Understand that the CIA's capacity to commit abuses is anything but theoretical. As Obama well knows, its history is rife with examples of its personnel using the cover of secrecy to do things that the American people and their elected representatives would have never willingly permitted. CIA abuses inspired the creation of the very same Select Committee on Intelligence in 1976. It began after the Church Committee discovered and revealed abuses as varied as secretly opening the mail of American citizens, attempting to assassinate foreign leaders, trying to monitor private citizens who opposed the Vietnam War, and illegal wiretapping.
Even after Congress committed to more vigilant oversight of the CIA, it continued to operate with far less transparency than other federal agencies. Little wonder that it continued to commit abuses. During the Reagan Administration, for example, the executive branch approved a CIA plan to secretly mine the most important harbor in Nicaragua. Members of the Senate committee claimed that they weren't sufficiently notified and won a promise of greater cooperation.
Though the Iran-Contra affair was run out of the White House, the CIA was complicit in parts of it, and several agency staffers were disciplined in its aftermath for withholding information. Twelve CIA employees were disciplined in the mid-1990s for failing to adequately inform Congress of its activities in Guatemala. In the aftermath of the September 11 terrorist attacks, the 9/11 Commission cited insufficient oversight of the CIA as a significant problem. And during the Bush Administration, CIA officers tortured prisoners by blindfolding them, strapping them to a board, and repeatedly forcing water into their lungs so that they'd be so terrified of drowning that they'd talk. Obama has acknowledged that waterboarding and other "enhanced interrogation techniques" institutionalized under his predecessor were torture, a judgment that hasn't stopped him from nominating Brennan, then at the CIA, who has defended all but waterboarding.
The evidence is incontrovertible: On numerous occasions in recent American history, the executive branch and the CIA have used to cover of secrecy to commit immoral and illegal acts.
The law is clear too: In order to balance the CIA's need for secrecy and the prudential need for oversight, Congress created a Senate committee and an analogue in the House. Later, "the Intelligence Oversight Act of 1980, as the law was known, established general reporting requirements for the Intelligence Community vis-à-vis the two oversight committees. The basic obligation imposed by the new law was the same one Carter had imposed on intelligence agencies earlier by executive order: to keep the two committees 'fully and currently informed' of their activities."
Despite all that, Obama is stymieing oversight efforts.
That brings us back to Wyden's letter to Brennan. It is worth excerpting at length:
As you may be aware, I have asked repeatedly over the past two years to see the secret legal opinions that contain the executive branch's understanding of the President's authority to kill American citizens in the course of counterterrorism operations. Senior intelligence officials have said publicly that they have the authority to knowingly use lethal force against Americans in the course of counterterrorism operations, and have indicated that there are secret legal opinions issued by the Justice Department's office of Legal Counsel that explain the basis for this authority. I have asked repeatedly to see these opinions, and I have been provided with some relevant information on the topic, but I have yet to see the opinions themselves.
.... For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens but refuse to provide Congress with any and all legal opinions that explain the executive branch's understanding of this authority represents an alarming and indefensible assertion of executive prerogative. There are clearly some circumstances in which the President has the authority to use lethal force against Americans who have taken up arms against the United States, just as President Lincoln had the authority to order Union troops to take military action against Confederate forces during the Civil War. But it is critically important for Congress and the American public to have full knowledge of how the executive branch understands the limits and boundaries of this authority, so that Congress and the public can decide whether this authority has been properly defined, and whether the President's power to deliberately kill American citizens is subject to appropriate limitations. I have an obligation from my oath of office to review any classified legal opinions that lay out the federal government's official views on this issue, and I will not be satisfied until I have received them. So please unsure that these opinions are provided to me, along with the other members of the Senate Intelligence Committee and our cleared staff, and that we receive written assurances that future legal opinions on this topic will also be provided.
The Obama Administration's failure to provide that information alone ought to be a scandal. It is certainly more scandalous than President Clinton's sexual relationship with Monica Lewinsky.
And there's even more stonewalling.
Wyden isn't just being denied information about the criteria for the extrajudicial killings of Americans. Team Obama won't even tell him in how many countries the United States is killing people!
As Wyden puts it:
I have been asking for over a year for the complete list of countries in which the intelligence community has used its lethal counterterrorism authorities. To my surprise and dismay, the intelligence community has declined to provide me with the complete list. In my judgment, every member of the Senate Intelligence Committee should know (or be able to find out) all of the countries where United States intelligence agencies have killed or attempted to kill people. the fact that this request was denied reflects poorly on the Obama Administration's commitment to cooperation with Congressional oversight. So, please ensure that the full list of countries is provided to me, along with other members of the Senate Intelligence Committee.
Every American ought to rally behind Wyden -- and certainly every American who considers him or herself a small-government conservative, a liberal, or a libertarian. Among all the oversight responsibilities of Congress, what could be more important than studying whether the legal authority cited to kill Americans without trial is sound? Given the CIA's history of excessive killing abroad and the multiple scandals that have resulted when its activities were exposed, along with Congress's authority to declare war, what could be more reasonable than a request to merely know the names of the countries where the CIA has killed people?
Obama has created exactly the sort of secretive, unaccountable environment that led to many of the CIA's most egregious historic abuses. He ought to be held accountable for all abuses that result from his reckless imprudence. And he ought to be judged harshly, because he knows better.
Original article on The Atlantic