Do you believe that the President has the power to authorize lethal force, such as a drone strike, against a US citizen on US soil, and without trial?"
After adding that "I believe the only acceptable answer to this is no", Paul wrote: "Until you directly and clearly answer, I plan to use every procedural option at my disposal to delay your confirmation and bring added scrutiny to this issue."
Yesterday, in response to my asking specifically about Paul's letter, Democratic Sen. Mark Udall of Colorado said that while he is not yet ready to threaten a filibuster, he "shares those concerns". He added: "Congress needs a better understanding of how the Executive Branch interprets the limits of its authorities."
Indeed it does. In fact, it is repellent to think that any member of the Senate Intelligence Committee - which claims to conduct oversight over the intelligence community - would vote to confirm Obama's CIA director while both the president and the nominee simply ignore their most basic question about what the president believes his own powers to be when it comes to targeting US citizens for assassination on US soil.
Udall also pointed to this New York Times article from yesterday detailing the growing anger on the part of several Democratic senators, including him, over the lack of transparency regarding the multiple legal opinions that purport to authorize the president's assassination power. Not only does the Obama administration refuse to make these legal memoranda public - senators have been repeatedly demanding for more than full year to see them - but they only two weeks ago permitted members to look at two of those memos, but "were available to be viewed only for a limited time and only by senators themselves, not their lawyers and experts." Said Udall in response to my questions yesterday: "Congress needs to fulfill its oversight function. This can't happen when members only have a short time to review complicated legal documents — as I did two weeks ago — and without any expert staff assistance or access to delve more deeply into the details."
Critically, the documents that are being concealed by the Obama administration are not operational plans or sensitive secrets. They are legal documents that, like the leaked white paper, simply purport to set forth the president's legal powers of execution and assassination. As Democratic lawyers relentlessly pointed out when the Bush administration also concealed legal memos authorizing presidential powers, keeping such documents secret is literally tantamount to maintaining "secret law". These are legal principles governing what the president can and cannot do - purported law - and US citizens are being barred from knowing what those legal claims are.
There is zero excuse for concealing these documents from the public (if there is any specific operational information, it can simply be redacted), and enormous harm that comes from doing so. As Dawn Johnsen, Obama's first choice to lead the OLC, put it during the Bush years: use of "'secret law' threatens the effective functioning of American democracy" and "the withholding from Congress and the public of legal interpretations by the [OLC] upsets the system of checks and balances between the executive and legislative branches of government." No matter your views on drones and War on Terror assassinations, what possible justification is there for concealing the legal rationale that authorizes these policies and defines the limits on the president's powers, if any?
You know who once claimed to understand the grave dangers from maintaining secret law? Barack Obama. On 16 April 2009, it was reported that Obama would announce whether he would declassify and release the Bush-era OLC memos that authorized torture. On that date, I wrote: "today is the most significant test yet determining the sincerity of Barack Obama's commitment to restore the Constitution, transparency and the rule of law." When it was announced that Obama would release those memos over the vehement objections of the CIA, I lavished him with praise for that, writing that "the significance of Obama's decision to release those memos - and the political courage it took - shouldn't be minimized". The same lofty reasoning Obama invoked to release those Bush torture memos clearly applies to his own assassination memos, yet his vaunted belief in transparency when it comes to "secret law" obviously applies only to George Bush and not himself.