Covert Action

Targeting, "Kill Lists", and Congress

By Matthew Waxman
Thursday, May 31, 2012, 10:28 AM

In all the last two days' coverage of the Obama administration's targeting program -- including this lengthy NYT piece, Dan Klaidman's book excerpt, and today's NYT editorial -- there's a remarkable lack of discussion of Congress.  (As far as I could tell, the NYT piece mentions Congress only in relation to detention issues, and the others make no mention at all).  It's remarkable for several reasons.

First, in justifying its counterterrorism practices, the Obama administration generally emphasizes the legislative basis for its actions, usually the 2001 Authorization for Use of Military Force, and draws distinctions in that regard from the Bush Administration's unilateralism.  Some lethal actions may be carried out pursuant to covert intelligence activity authorities, and the Obama administration has emphasized its commitment to more robust Congressional intelligence oversight than its predecessor.  So shouldn't some detail about how the Obama administration shares targeting policy and practice information with Congress -- and how Congress exercises oversight -- be a significant part of this story and our understanding of whether executive power really is unchecked? And is that inter-branch check enough to ensure sufficient accountability?  With regard to other wars and military or intelligence operations it is usually regarded as so.

Second, when storms blew up over CIA enhanced interrogation techniques and NSA surveillance programs, the degree to which and the way in which Congressional leaders and committees were briefed was a big deal.  Indeed, controversy swirled about exactly which members of congress were told what, whether they were allowed an opportunity for their own counsels' review, etc.  Rather than waiting until future finger-pointing makes it politically urgent, shouldn't we pay attention now to these oversight processes?  (Recall here Jack's previous post about Senator Feinstein's public statement that the Intelligence Committee had been fully briefed on the legal basis for the administration's use of lethal force against terrorists, including Americans, as that she was satisfied with regard to legality and effectiveness.)

Third, as Ben points out this morning, some remedial proposals -- such as the NYT's call for court review of some targeting decisions -- would require legislative action.  Proponents of such action should be careful what they wish for.  The NYT editorial board today cautions that "[t]he precedents now being set [by Obama] will be carried on by successors who may have far lower standards."  I wonder, then, which current House leaders they would like working on this legislation?