President yields on memo; panels to see legal basis for drone hits

WASHINGTON – President Barack Obama on Wednesday ordered the Justice Department to share with Congress a classified memo that explains the legal rationale that justifies the targeted killing of Americans suspected of being members of al-Qaida.

The decision came after years of refusing to make the memo available and two days after a Justice Department “white paper” that described the memo’s contents was made public. The memo provides the legal framework for U.S. drone attacks that have killed at least three American citizens and as many as 3,500 others.

Obama’s counterterrorism adviser, John Brennan, Obama’s nominee to head the CIA, is expected to face tough questioning over the program today from the Senate Intelligence Committee considering his nomination.

“Today, as part of the president’s ongoing commitment to consult with Congress on national security matters, the president directed the Department of Justice to provide the congressional intelligence committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice white paper,” the White House said in a statement emailed to reporters.

Targeted killing, which began under former President George W. Bush, officially remains a classified CIA program. To date, it is known to involve only missile strikes by unmanned aircraft in Pakistan, Somalia and Yemen against what U.S. officials say are leaders of al-Qaida and “associated groups” plotting imminent attacks on U.S. targets.

The Obama administration repeatedly has denied requests that the memo justifying the program be released and has fought in court to keep it secret.

A bipartisan coalition in Congress that includes liberal Democrats and conservative Republicans has demanded that the memo be made public; on Monday three Republican and eight Democratic senators wrote the president asking that he share the memo.

Obama’s decision to allow members of the House and Senate intelligence committees to see the memo came after the publication Monday of a so-called “white paper” that described the reasoning behind the Justice Department memo. The memo was leaked to NBC News.

Critics of the drone program immediately attacked the logic described in the paper, saying it relied on a misinterpretation of U.S. and international law, and misconstrued the definition of “imminent” in its search to justify the killing of people who had not been accused of a crime.

The paper asserts that the government has the constitutional power to kill a U.S. citizen who is believed to be a leader of al-Qaida or an “associated force” and is in another country “actively engaged in planning operations to kill Americans.”

The memo said that three conditions must be met: “An informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States; (2) capture is infeasible, and the United States continues to monitor whether capture becomes feasible, and (3) the operation would be conducted in a manner consistent with applicable law of war principles.”

The white paper, however, spells out rules under which such attacks can be ordered that appear to be much less stringent than what administration officials have said. It says, for example, that the United States isn’t required “to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.”

It also says the United States has the right under international law to act under the suspicion that an attack might take place.