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02.06.13

The Drone Memo’s Origins

Thanks to a leaked white paper, we now know the administration’s legal rationale for killing Anwar al-Awlaki. Daniel Klaidman takes a behind-the-scenes look at the internal debate about releasing it.

Yesterday, NBC News revealed the existence of a “white paper” that lays out the legal theories Obama administration officials have relied on to justify the killing of U.S. citizens. The leak seemed timed to put pressure on John Brennan, President Obama’s nominee for CIA director, to be more forthcoming at his confirmation hearings before the Senate later this week. But the backstory of the memo is much bigger than simply Brennan’s nomination: it was part of a long-running internal debate over how transparent the administration should be about the targeting of U.S. citizens.

The memo is based on a much longer legal opinion by the Justice Department’s Office of Legal Counsel. Both documents exist because of Anwar al-Awlaki, an American citizen who was also a leader of the al Qaeda affiliate in Yemen. Obama believed that Awlaki, who masterminded numerous attempts to attack the U.S. homeland, represented a grave threat to America. But when the United States killed him in a drone strike in September 2011, civil libertarians and human rights activists were outraged. They argued that the killing amounted to a summary execution of an American citizen without due process.

Privately, administration officials maintained that the killing was a necessary and lawful act of war to prevent an imminent threat to the safety of the American people. But publicly, they said very little. The CIA’s drone program is classified and therefore not publicly acknowledged by U.S. officials. And so, in the wake of the strike, Obama hailed the “death of Awlaki” as a “major blow” in the fight against al Qaeda, but made no mention of U.S. involvement in the operation.

Yet behind the scenes, a deep divide opened up between those who were in favor of more transparency and those who wanted to keep silent. Not surprisingly, the intelligence community was adamant about protecting the secrecy of one of its most prized covert programs. But other officials, notably from the State and Justice Departments, argued that the killing of an American citizen without trial, while justified in rare cases, was so extraordinary it demanded a higher level of public explanation.

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On MSNBC Tuesday, Joe Scarborough tore into Obama's drone program.

According to two senior administration officials, the issue came to a head in a Situation Room meeting in November 2011, where different options were hashed out. At one end of the spectrum, intelligence officials proposed revealing nothing. At the other end, some officials pushed for the release of a “white paper,” which would closely track the legal reasoning contained in the original OLC memo. In the succeeding weeks, compromise options were worked out in lower-level interagency meetings. They included having Attorney General Eric Holder write an op-ed in The New York Times, or having him make a speech outlining the administration’s legal case. Officials argued over the various options for months. It came down to what then-Deputy National Security Adviser Denis McDonough cheekily called the “half Monty” (the op-ed or speech) versus the “full Monty” (releasing the white paper).

Behind the scenes, a deep divide opened up between those who were in favor of more transparency and those who wanted to keep silent.

In the end, they settled on the half Monty, and Holder delivered a speech at the University of Chicago in March 2012. In the speech, Holder argued that the United States could target Americans so long as it met a three-part test. He said the government would have to determine after “careful review” that the target posed an “imminent threat” of violent attack against the United States, that capture was not feasible, and that the killing did not violate the laws of war.

But for lawyers, the devils are always in the details—and Holder’s remarks left many questions unanswered. Some of these questions have now been answered by the leaked white paper. Among them, how the administration interprets “imminent threat”: rather broadly, it turns out. The memo states that a terrorist does not have to be preparing for a specific attack to meet the imminence standard. That threshold would be met if a high-level operative in an organization like al Qaeda, which had shown a continual desire to attack the United States, was taking measures in furtherance of that goal, including training or bomb building.

Brennan had actually made this argument publicly in a speech he gave at Harvard Law School in 2011. “We are finding increasing recognition in the international community,” he said, “that a more flexible understanding of ‘imminence’ may be appropriate when dealing with terrorist groups.” He went on to argue that in an age of transnational terrorism, when suicide bombers hide among civilian populations, relying on traditional notions of imminence—say, an enemy force massing its troops and tanks on the border in preparation for an invasion—would be impractical.

The speech was little-noticed at the time. But in retrospect, it was a rare glimpse into the administration’s thinking on a subject where it was never as transparent as some Obama officials would have liked. Now, with the white paper having leaked, Brennan will likely say more on the topic at his Senate grilling tomorrow.