You know it’s not a good day for the Obama administration when a paragon of the Tea Party right is roasting the president and liberal twitter feeds are lighting up in support. But that’s exactly what happened this past week when Kentucky Senator Rand Paul mounted his “talking filibuster” to block the confirmation of CIA nominee John Brennan. Paul kept up the parliamentary maneuver for 13 hours in an effort to extract answers from the administration about its covert drone program, and particularly the question of whether it is legal to target American citizens on U.S. soil.
It was a strange-bedfellows moment that harkened back to the Clinton era, when government-fearing elements of the GOP joined forces with the civil-libertarian left to assail over-zealous law-enforcement tactics. And while Brennan’s nomination was never really in jeopardy—he was confirmed Thursday by a comfortable margin—Paul succeeded in forcing Obama officials to publicly address a set of national security issues that has always made them feel distinctly uncomfortable.
How could the administration have allowed itself to get tangled up in an embarrassing controversy over deeply hypothetical questions like whether the military could fire a drone strike at an American citizen sitting in a cafe? One reason, of course, is the circus that confirmations have become—proxy battles for the permanent political conflict between Republicans and the White House. But perhaps the biggest reason has been the administration’s unwillingness to share information about its drone program, which has fed the perception among both Republicans and Democrats that it has an imperious, high-handed attitude toward Congress. And when officials have answered questions from Congress, the responses have often been so pettifogging and over-lawyered that they’ve done more harm than good.
The irony is that Obama and most of his top aides are personally in favor of more rather than less transparency. But in the end, they have repeatedly deferred to secrecy obsessed spooks and handwringing lawyers whose default position has been to keep things under wraps. “It’s clear that the president and the attorney general both want more transparency,” says Matthew Miller, a former senior Justice Department official. “But the bureaucracy has once again thrown sand in the gears and slowed that down.”
“We realized this was going to be a public relations debacle,” recalls a former senior administration who advocated for greater transparency.
The drones mess also reflects Obama’s tortured, Solomonic approach to dealing with difficult national security issues. In seeking to balance transparency and security, Obama has pursued a middle path that, in the end, has satisfied nobody. And in the case of drones, that approach has been at odds with a basic Washington imperative: it is almost always better to be transparent earlier, lest you end up having to disclose even more later. “The word on the street,” says a former administration national security official, “is they’ll end up giving away the farm, all the animals, and the John Deere equipment by the time this is done.”
One thing you can say about Team Obama: there was no lack of internal debate about the need to be more transparent. The discussions began in the aftermath of the September 30, 2011 drone strike against Anwar al-Awlaki, the Yemeni-American preacher and senior al Qaeda operative. They intensified a few weeks later when Awlaki’s son, also a U.S. citizen, was mistakenly killed in another drone attack in Yemen. “We realized this was going to be a public relations debacle,” recalls a former senior administration who advocated for greater transparency. Sure enough, academics and national security experts began writing more critically about the drone policy as well as the administration’s penchant for secrecy. One particularly stinging op-ed piece, which ran in The Washington Post, was by a former Bush administration State Department official; it appeared under the headline “Will drones strikes become Obama’s Guantanamo?”
That fall, then Deputy National Security Adviser Denis McDonough convened a series of Situation Room meetings to hash out how much to disclose, according to three senior administration officials. At one end of the spectrum was Harold Koh, the State Department’s legal adviser, who argued that the White House should make public a redacted version of the Justice Department legal opinion authorizing the targeted killings of U.S. citizens. In addition, Koh argued for turning over the un-redacted, classified version of the opinion to Congress. That position was aggressively opposed by the intelligence community and Justice Department lawyers with the Office of Legal Counsel: the spooks were opposed to any disclosures that would lift the veil on a covert CIA program, and the OLC lawyers didn’t want to release legal opinions that they viewed as privileged advice to their client, the president. Meanwhile, lawyers for the White House fretted that too much disclosure could weaken their stance in pending litigation. (The New York Times had filed a lawsuit against the administration under the Freedom of Information Act seeking the Justice Department legal opinion in the Awlaki case.)
The issue came to a head at a Situation Room meeting in November, according to four participants. By then, officials from the intelligence community, Justice, and the White House had begun moving toward a compromise position: publicly disclosing the legal reasoning behind the Awlaki killing, but keeping the full Justice Department opinion under wraps. The State Department’s Koh kept pushing for the maximum amount of disclosure. It would come down to what McDonough cheekily called the “half Monty” versus the “full Monty.”
In the end, the White House signed off on the half Monty. A Justice Department lawyer named Stuart Delery set out to produce a stripped down version of the memo. But the White House had still not decided what form the disclosure would take. One proposal was an op-ed piece that would run under Holder’s byline, but Delery’s document ended up being so long that option was scrapped. Another possibility was releasing a white paper to the public. In the end, the White House settled on letting Holder deliver a so-called “wave-top” speech, an address that would deal with a host of pressing national security issues and would include a section on the legal rationale behind killing American citizens. But, critically, the administration did not give anything separately to Congress.
Soon thereafter, a draft of the speech was sent over to the White House for approval. For reasons that remain unclear, it languished on National Security Adviser Tom Donilon’s desk for months. Then, in January 2012, it was circulated by the National Security Council for final approval. Holder delivered the speech at the Northwestern University School of Law that March. His comments did not create much of a stir at the time—other than from law professor types who quibbled with his assertion that the due process requirement contemplated by the Constitution’s Fifth Amendment did not mandate “judicial process.” Translation: Awlaki wasn’t entitled to a trial before being whacked by a CIA drone. But it did get noticed on the Senate and House Intelligence committees, which had been pushing for more access to information on the administration’s drone program as part of their oversight responsibilities. Griped one Senate staffer, “If they were willing to talk about it publicly, they should have been willing to brief the committees more fulsomely.”
In June, Obama officials finally turned over the now-famous “white paper” to the committee, with admonitions that they not leak it. But for Congress, it was too little too late. The document did not contain a lot that went substantively beyond the Holder speech, and frustration was building among lawmakers. Democrat Ron Wyden began leading the charge for all of the Justice Department opinions relating to drones—and by this winter, Congress had its leverage to demand that they be turned over: the nomination of John Brennan, architect of the Obama drone program, to be CIA director.
In the end, the intelligence committees got most of what they wanted, including the complete, un-redacted Justice Department memo justifying the targeting of American citizens—the full Monty that Koh had argued for in the first place. But by then, Congress was hungry for more. And that’s when Rand Paul started talking.
Correction: An earlier version of this article incorrectly reported the location of Eric Holder's January 2012 speech. The speech was given at the Northwestern University School of Law, not the University of Chicago.