Targeted Killing

Senator Feinstein on the Obama Administration and Targeted Killing

By Jack Goldsmith
Wednesday, March 21, 2012, 2:39 PM

Earlier this week I published a piece on the Foreign Policy page that defended the legal infrastructure for the Obama’s administration’s targeted killing program.  At the end I made the following proposal as a way for Congress to help the president convey to the public credibly that his largely secret targeted killing policies were lawful and carefully conducted:

The government should take advantage of the separation of powers.  Military detention at Guantánamo Bay, Cuba has become more legitimate and less controversial in part because another branch of government, the judiciary, has looked at the detentions and agreed with the executive's assessment.  Such judicial review is inappropriate for targeting decisions and, in any event, not available.  But a different adversarial branch of government -- Congress -- can play an analogous role. The congressional intelligence and arms services committees know a lot about the president's targeting policies, and have gone along with the president's actions.  These committees could (without revealing sensitive information) do more to enhance the president's credibility by stating publicly -- and preferably in a bipartisan fashion -- that they have monitored the president's high-value targeting decisions and find them, and the facts and processes on which they are based, to be sound. Congress does not typically like the responsibility (or the hard work) that such an endorsement would entail.  But especially when courts are not available to review the president's actions, it should step up its public involvement in scrutinizing and vouching for (or criticizing) the president's targeting decisions. Indeed, the president should insist on it.

It turns out that Senator Diane Feinstein has done precisely what I called for.  Soon after Holder’s speech she issued the following statement:

The Attorney General presented the administration’s legal analysis for the use of force against terrorists, including Americans. I believe it is important for the public to understand the legal basis and to make clear that our counterterrorism efforts are lawful under the Constitution, U.S. law and the law of war.  We are made safer by strikes against terrorists who continue to lead and carry out attacks on the United States. There are legal limits to this authority and great care is taken to ensure it is exercised carefully and with the absolute minimum of collateral damage. The Senate Intelligence Committee is kept fully informed of counterterrorism operations and keeps close watch to make sure they are effective, responsible and in keeping with U.S. and international law.

It would be great – for the presidency, and the nation’s confidence in it – if more intelligence committee members issued such statements, and assumed the responsibilities that such statements entail.  Will a republican on the Senate or House intelligence committee vouch for the President's policy?