Drones: Tough Talk, Little Scrutiny

By David Nather, Politico

10 February 13

rom the way senators talked about the drone program at the John Brennan hearing Thursday, you'd think Congress has been hauling in White House officials to explain the program in the light of day again and again.

But Congress' public oversight of targeted killings has been almost nonexistent. The last hearings on the drone strikes - held by a House national security subcommittee - faded away after the early months of 2010.

And until Thursday's Brennan hearing, the two committees with jurisdiction over the CIA drone program - the Senate and House Intelligence Committees - have never held a public inquiry on the program. The Senate and House Armed Services Committees, which oversee the military drone program in war zones, haven't held hearings, either.

Senior members of Congress insist they are briefed on strikes, but that only happens after a strike - behind closed doors, far from public view.

In addition, lawmakers and congressional leaders with the authority to investigate won't say if they've given the program greater scrutiny in private, so whatever questions have been asked aren't part of the public record.

That's angered a small band of senators - mostly liberals, but a few Republicans too - who have complained for years that the program exists only in the shadows.

So while it's big news this week that the White House turned over classified legal opinions that justify using drone strikes to kill Americans abroad, it's not clear that the revelation marks a new day for drone oversight.

In fact, there's plenty of evidence to suggest that Congress will return to status quo, as the Hill often does after a brief moment of interest in a headline-grabbing national security program like the eavesdropping program under President George W. Bush.

Just look at what some of the overseers say about the strikes and the idea that Congress should try to second-guess them.

"The idea of having 535 commanders in chief decide the target is ridiculous," said Sen. Lindsey Graham (R-S.C.), a member of the Armed Services Committee, who plans to introduce a resolution next week supporting the drone strike program. "It should reside with the commander in chief to decide who is an enemy combatant."

Rep. Mike Rogers of Michigan, the chairman of the House Intelligence Committee, says he's fine with the drone strikes even though he was one of the lawmakers calling on the Obama administration to release the legal opinions.

"This has been a huge value-added in disrupting al Qaeda events. And guess what? Sometimes Americans have joined that organization to kill Americans. That's their choice, not ours," Rogers said in an interview on MSNBC Wednesday.

Even Sen. Dianne Feinstein of California, the chairman of the Senate Intelligence Committee, sounds at times like one of the drone program's biggest defenders. At Thursday's hearing, she did push Brennan for help getting eight other legal opinions on the program. But what was Feinstein's main complaint about the classification rules? They're preventing her from talking about how low the civilian casualties are.

Sen. Ron Wyden (D-Ore.), one of the senators who led the push to get the legal opinion, suggested at Thursday's hearing that the senators had been stiffed - that the Justice Department hadn't actually given the intelligence committees all of the legal opinions after all.

Some of the overseers, like Wyden, have gotten some mileage out of pressuring the administration. And some Senate intelligence committee members did sound concerned about the drone strikes at Thursday's hearing, including Republican Sen. Susan Collins of Maine, who suggested to Brennan that the number of targeted killings under Obama has been four times as high as it was during the entire Bush presidency.
But others, if they're not actively cheering for the program, are just scared to say too much about it.

"I think the committee has been doing the work it's supposed to be doing," Sen. Marco Rubio of Florida - Time magazine's newly appointed "Republican savior" - told POLITICO with a nervous look on his face before rushing into a senators' luncheon. "I'm a new member. I just want to make sure I'm not talking about things I'm not supposed to discuss."

Even the Obama administration's allies aren't impressed. They want Congress to get tougher with the president - and force him not just to reveal the legal reasoning behind the CIA drone strikes, but to explain more about who gets to make the strike decisions and what groups can be targeted. And they want to open the program to some kind of outside scrutiny, whether it's done in public or not.

"I have every confidence that this administration is doing everything it can to make the right decisions, but our system is built on checks and balances," said Ken Gude, chief of staff and vice president at the Center for American Progress, which has close ties to the Obama administration. "I shouldn't be any more accepting of the assurances of this administration than I was of the Bush administration."

The irony isn't lost on Gude. He worked on a CAP paper in 2006 that recommended ways to improve congressional oversight of intelligence after Bush's warrantless surveillance program was revealed. The lead author of the paper: Denis McDonough - now the new White House chief of staff.

The Brennan hearing was a rare case where lawmakers have even tried to ask questions in public about the Central Intelligence Agency's drone strikes against suspected militants in Pakistan and Yemen.

Most of the Senate and House intelligence committee hearings are closed, and committee aides refused to say whether the CIA drone strikes have even been a topic of the hearings. But the Senate and House Armed Services Committees, which have jurisdiction over the Defense Department drones used in Afghanistan and Iraq, have held no hearings on the topic during Obama's presidency.

One House panel, the House Oversight and Government Reform National Security Subcommittee, did hold two hearings in March and April 2010 about the legal and ethical questions raised by the targeted killings. Since then, the full committee and subcommittee have held no hearings on the topic.

And none of the members of the "Gang of Eight," the top Democratic and Republican leaders in the House and Senate and the chairmen and ranking members of the Intelligence Committees, would say whether they've gotten details on the program during the closed briefings about covert activities they get from the Obama administration.

Until now, it has been just a handful of senators - like Democrats Wyden and Patrick Leahy (Vt.) and Republican Chuck Grassley (Iowa) - who have been pushing for the legal opinions, and it's only with the Brennan hearing that they really had an impact.

Wyden told POLITICO he thinks there is a "new pragmatic and bipartisan coalition emerging on these issues," and that Obama told him Wednesday night that "we need a public discussion" of the issues surrounding the drone program.

But that only made Wyden more frustrated when he realized the Intelligence Committee had not received all of the legal opinions Obama promised. "There seems to be a pretty big disconnect between what the president said last night and what we saw this morning," Wyden said.

Wyden and the other senators used their moment of maximum leverage, since Obama needs them to confirm Brennan as the next CIA director - and they had hinted strongly that they might not do that if Obama didn't turn over the legal opinions. They won't have that kind of leverage to get more details for a long time after Brennan is confirmed, assuming the Senate approves him.

But Grassley, for one, bristles at the notion that they should even need leverage.

"What leverage do we need to have when this administration said on Jan. 20, 2009 that they were going to be the most transparent and honest administration in the history of the country?" Grassley asked.

The drone strikes have become a major test of how Congress has built up its oversight of covert activities since the National Security Agency's warrantless surveillance program came to light during the Bush years.

That episode revealed serious limits on the leverage lawmakers had to ask questions about the programs - especially in the briefings that are limited to the Gang of Eight. At the time, gang members couldn't even share their concerns about the program, and Sen. Jay Rockefeller, then the vice chairman of the Senate Intelligence Committee, had to resort to writing a letter to then-Vice President Dick Cheney and keeping it locked in a safe. Eventually, Bush halted the program under public pressure - but only after it had been revealed in news reports.

Since then, the law has been strengthened a bit, to require the White House to give at least a general description of a covert activity to all Intelligence Committee members after the more detailed briefing is given to the Gang of Eight.

Even now, though, civil liberties groups say the limits of secret oversight are becoming obvious again with the new questions about the CIA drone program.

"These committees get very little bang for the buck for pushing back," said Elizabeth Goitein of the Brennan Center for Justice. "The public can't get fired up about things they don't know."

Most of lawmakers' comments lately have focused on the September 2011 strike that killed Anwar al-Awlaki, a Yemeni cleric who was born in the United States and was tied to plots to blow up an airplane in December 2009 and cargo planes in 2010.

They haven't paid as much attention to the numerous other attacks. The New America Foundation, which has been tracking the strikes through news reports, estimates that 1,953-3,279 people have been killed by CIA drone strikes in Pakistan since 2004. Most were reported to be militants, the group says, but about 18-23 percent of the deaths were believed to be civilian casualties.

The CIA runs the drone attacks in non-war zones like Pakistan, while the Department of Defense has been in charge of the drone missions in areas like Iraq and Afghanistan, according to the Council on Foreign Relations.

The drone strikes in general are wildly popular with American voters. They approve of the CIA drone attacks by a three-to-one margin and the U.S. military strikes by a six-to-one margin, according to a Fairleigh Dickinson University poll released Thursday. Strikes on American citizens overseas are a different matter, though - 48 percent say they think those strikes are illegal, while 24 percent say they're legal.

It's not that there has been no oversight. Feinstein said Thursday that the committee has been conducting "significant oversight" of the drone program - and suggested it has been detailed enough that she knows the exact number of civilian casualties. Last summer, the Los Angeles Times reported that House and Senate Intelligence Committee staffers have been watching videos of the drone strikes at the CIA headquarters.

And Rogers told MSNBC he reviews "all of the air strikes that we use under this title of the law." But he also suggested he doesn't have any real doubts about the program.

"You don't just kill the enemy when they're at the gate. You try to make sure that you get them before they even get close to having an operation that could kill Americans," he said.

And House Armed Services Committee Chairman Buck McKeon (R-Calif.) told POLITICO he has seen the Defense Department drone operations firsthand - because he has watched his nephew, who used to fly Predator drones over Afghanistan from a remote location in Nevada.

He's not bothered by what he has seen.

"I'm aware of the concerns that are being raised. I don't think we have the same problems with the DoD program that are being raised with the CIA program," said McKeon. "I think we're doing everything we can to comply with the law. In fact, sometimes they go overboard. They'll lose a target rather than risk collateral damage."

Realistically, most of the oversight of CIA activities like the drone program is going to have to stay behind closed doors. But Congress does have another option: passing legislation to authorize the drone program outside of war zones and putting conditions and limits on it.

Even if lawmakers were inclined to do that, though - and the legislation could get through a divided Congress - Brennan insists the Obama administration doesn't need it, signaling that he'd put up a fight as CIA director. The 2001 authorization for military force after the Sept. 11 attacks already takes care of that, he said in written responses to questions from the Senate intelligence committee.

That authorization "does not contain a geographical limitation," Brennan wrote. "Consequently I do not believe additional legislation along these lines is necessary."