By Karen DeYoung and Greg Miller
The Washington Post
WASHINGTON — President Barack Obama yielded Wednesday to congressional demands that he provide access to a secret legal memo on the targeted killing of American terrorism suspects overseas, avoiding a confrontation that threatened the confirmation of John O. Brennan as his new CIA director.
Obama directed the Justice Department to hand over the document to the Senate intelligence committee "as part of the president's ongoing commitment to consult with Congress on national security matters," an administration official said.
Senate Democrats and Republicans, including several on the intelligence committee, had threatened to delay, if not derail, Brennan's confirmation in a Thursday hearing.
Committee Chairman Dianne Feinstein, D-Calif., said she was "pleased" with the decision. "It is critical for the committee's oversight function to fully understand the legal basis for all intelligence and counterterrorism operations," Feinstein said in a statement.
She said the committee expected to receive the document Thursday morning.
The memos, written by the Justice Department's Office of Legal Counsel, provided the administration's legal basis for a 2011 CIA drone attack in Yemen that killed U.S.-born cleric Anwar al-Awlaki. Obama described Awlaki as the chief of "external operations" for al-Qaida in the Arabian Peninsula, the al-Qaida affiliate held responsible for several unsuccessful attacks on the United States.
The administration had described the memo as an internal "work product" that does not have to be shared with Congress. Lawmakers accused the administration of a lack of transparency and likened its handling of the issue to the refusal of the George W. Bush administration to provide access to legal memos justifying the use of harsh interrogation methods against terrorism suspects. Obama publicly released those memos shortly after taking office in 2009.
Last summer, the Justice Department provided members of the intelligence and Judiciary committees with a summary of the legal opinion on U.S. citizen killings. But key lawmakers said it was not enough.
While specific lethal operations "need to be confidential," Sen. Ron Wyden, D-Ore., said Wednesday, "laws in our country and their interpretation are not supposed to be confidential. . . . The idea of keeping the intelligence committee, in particular, out of even any real insight into the legal analysis, it's a mockery . . . of the oversight process."
Wyden, a committee member who spoke to reporters at Senate Democrats' annual retreat in Annapolis, Md., stopped short of saying he planned to hold up Brennan's confirmation. But, he said, "you'll be certain I am going to bring it up" at the hearing and "I am going to pull out all the stops" to obtain the document.
In written answers to the intelligence committee released by the panel Wednesday in advance of the hearing, Brennan hinted at concerns he has expressed before that the CIA has become too paramilitary in its focus and should not be in the killing business. But he also defended the "astonishing precision" of the armed drones operated by both the intelligence agency and the military.
Asked about the CIA's expanded role in lethal operations, Brennan replied that the agency needs to maintain a paramilitary capability, but said, "I would not be the director of a CIA that carries out missions that should be carried out by the U.S. military."
Despite those views, the CIA expanded into what amounts to a covert air force of remotely piloted planes during Brennan's tenure as Obama's chief counterterrorism adviser over the past four years. He played a critical role in overseeing a drone campaign that has carried out hundreds of strikes in Pakistan and Yemen, killing more than 3,000 militants and civilians.
Brennan served in the CIA for a quarter-century before leaving government and later joining Obama's initial presidential campaign. In the written answers, he suggested that the CIA's focus on lethal operations has harmed its core mission of gathering intelligence, saying that despite soaring budgets, the turmoil of the Arab Spring showed that the CIA "needs to improve its capabilities and its performance."
He also reiterated his assertion that he lodged private protests with CIA colleagues in the aftermath of the Sept. 11, 2001, attacks over the agency's embrace of brutal interrogation techniques including "waterboarding."
Brennan said he was "aware of the program but did not play a role in its creation." He said he had "significant concerns and personal objections" and "voiced those objections privately with colleagues at the agency."
Former high-ranking CIA officials who worked closely with Brennan said they could not recall him ever raising any objections to the interrogation program.
Brennan, who was once forced to retreat from comments about the absence of civilian casualties in drone strikes, was asked by the committee to provide an estimate, and explain the evidence for it.
Brennan resisted, acknowledging that there have been civilian casualties but saying that they are "exceedingly rare, and much, much rarer than many allege."
Brennan also disclosed on the Senate questionnaire that he had been questioned by the Justice Department in connection with leak cases that center on disclosures about U.S. cyberattacks on Iran and the disruption of an al-Qaida plot in Yemen.
Brennan said his lawyer has been advised that he is "only a witness in both investigations," and not a target.