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Unmanned Oversight

How Congress whiffed on drones

Joel Saget/AFP/Getty Images

Before this week, Capitol Hill was mostly quiet about President Barack Obama's overseas drone strike program. Sure, the hardcore civil libertarians in Congress, like Senator Ron Wyden or Representative Jerrold Nadler, persistently needled the administration for information, and the subject came up at the occasional committee hearing. But drone strikes had never been a big, public topic of discussion in the House and Senate—certainly not the way they are in, say, Pakistan or the United Nations, which last month opened an investigation into the legality of the United States' operations. Micah Zenko, author of a recent Council on Foreign Relations report on the United States' use of drones, called Congress' oversight "extremely poor" last week.

This week, however, the volume has turned way up on the Hill. And it's only going to get louder. That's what happens when the president nominates the mastermind of his drone program, his chief counterterrorism advisor John O. Brennan, to lead the CIA: It focuses attention on what he masterminded. On Thursday afternoon, when Brennan appears before the Senate Intelligence Committee, he'll be asked to talk about those drone strikes in a public hearing on his nomination.

The Obama administration, wanting to clear potential obstacles to Brennan's confirmation, handed Congress a big victory late Wednesday. The White House reversed itself and agreed to provide legal opinions to the two Congressional Intelligence Committees explaining its rationale for ordering the death of a U.S. citizen overseas suspected of terrorism. That ought to answer some questions for members of the Senate panel, but not all of them. And it still leaves a number of other committees—not to mention the American public—in the dark.

To critics of the administration's policies, such scrutiny is long overdue. Other checks on executive power are stymied when it comes to intelligence: Reporters encounter difficulty in obtaining classified information, and courts run into the "state secrets" privilege. Congress, however, under the National Security Act of 1947, is obligated to receive information on intelligence programs from the executive branch that others are not.

Congress has waded into the intelligence controversies of the recent past, from warrantless wiretapping to torture to Guantanamo Bay. Its relative silence on drone strikes before this week was surprising—though Congress is not as clueless to the administration's drone programs as you'd guess from the public record. What Congress does learn about the drone programs usually happens behind closed doors on the House and Senate Intelligence Committees. It is with these committees that you begin to understand Congress' complicated relationship with the White House's most controversial national security program.

The members of the two Intelligence Committees have seen more of the drone strike programs than anyone outside the White House, the Pentagon, and spy agencies. The Senate Intelligence Committee, chaired by Senator Diane Feinstein, has monthly review sessions on the strikes. Meanwhile, the House Intelligence Committee Chairman, Rep. Mike Rogers, said on the House floor in December: "If there is any air strike conducted that involves an enemy combatant of the United States outside the theater of direct combat, it gets reviewed by this committee. I am talking about every single one. That's an important thing. There are very strict reviews put on all of this material."

Both Feinstein and Rogers, however, have been reluctant to criticize the drone programs; in fact, they're both strong supporters. And nearly all of the information their committees handle is classified. Feinstein, for instance, said in a speech last summer that "collateral damage is really greatly reduced beyond what you may read in the press" but offered no supporting evidence: "I have asked, 'please please please can I release these numbers?' And the answer is 'no, they're classified,'" she explained. "So that's about as far as I could go on that."

 "We've seen members come out of these sessions saying, 'We're satisfied,'" says Andrea Prasow, senior counsel in Human Rights Watch's Terrorism and Counterterrorism Program. "Essentially they're just saying, 'Just trust us.' Sometimes, it's necessary for the public to be told 'Just trust us,' but very, very rarely."

Although much of the committees' work needs to be confidential, not all of it does. Steven Aftergood, editor of Secrecy News, has written about the declining tendency of the Intelligence Committees to hold public hearings: The Senate Intelligence Committee had just one such hearing in 2012, which Aftergood calculated was the fewest in 25 years and perhaps ever.

"It absolutely weakens the committees," says Amy Zegart, a Stanford professor and Hoover Institution fellow who has written extensively on congressional oversight of intelligence. "The juice the committees get is from public support. To the extent that the committees are focusing public attention on intelligence issues, they have a lever in negotiations with the executive branch."

Other Congressional committees you might expect to exercise some oversight of the White House drone programs have faced criticism for being ineffective. In January, Vicki Divoll, a former Senate Intelligence Committee staffer, took Senate Judiciary Chairman Patrick Leahy to task in The New York Times for "limply requesting the Department of Justice memorandums that justify the targeted killing program." The House Judiciary Committee has likewise opted for the velvet glove. In December, it procedurally scuttled a resolution from since-retired Rep. Dennis Kucinich demanding more information from the administration on drone strikes. The committee's leaders said they were seeking the information by other means and didn’t want to up the ante just yet.

Other committees have fared just as poorly. "The Senate Foreign Relations and House Foreign Affairs Committees have never received any briefings," says Zenko. "They've threatened to withhold funding, and the administration has said, 'Go ahead and try it.'" This means, Zenkos says, the committees "can't really do their oversight function."

It should be noted that Congress has, in fact, done meaty work on intelligence since September 11, 2001. It created an Office of the Director of National Intelligence and completely reshaped the bureaucracy of the intelligence community. But when it comes to some of the most controversial recent programs, it either hasn't been able to put an end to them or has chosen not to do so. Congress' response to the Bush administration’s warrantless surveillance program was to effectively authorize it. It also tried multiple times, without success, to ban the Bush administration's harsh interrogation methods. And Congress is one of the major reasons that the Guantanamo Bay detention facility remains open. Each year, lawmakers renew a series of hurdles that make it exceptionally difficult for the executive branch to transfer prisoners elsewhere.

"We still have better oversight with respect to intelligence than any nation in the world," says Loch K. Johnson, a University of Georgia political science professor who once served as a Hill intelligence staffer. But that doesn't mean it's anywhere near enough, Johnson says.

It will probably be hard for Senators to push Brennan off his talking points when they question him Thursday, but it will at least be an opportunity to ask questions.

After years of work, Wyden says he is pleased by the White House's Wednesday evening release of the Office of Legal Counsel opinions on the targeted killing of U.S. citizens. On Wednesday morning, Wyden said he would "pull out all the stops" to get the memos, which reporters widely interpreted as a filibuster threat to Brennan’s nomination. But Wyden says that wasn't the idea. "What happened here is the cumulative effect about how strong the sentiment was on this," he says.

What happens next will depend, in part, on what Senate Intelligence Committee members make of the memos when they view them before Brennan's hearing. But there are already signs that Congress is paying a price for being tardy to the fight. According to reports, Brennan has wanted to shift more of the drone strike burden from the CIA to the military. That's what human rights and civil liberties groups want, too: Prasow said the military is more transparent than the CIA, at least, which gives the public a better chance at insight into what’s really happening.

Ironically, then, by the time Brennan comes before the Intelligence Committee to discuss drone strikes, he might not be the best person to talk to about it anymore.

"The time to ask questions about this issue was yesterday," Zenko says, referring to the Senate Armed Services hearing on Obama’s nominee for Defense Secretary. "The questions to ask were to Chuck Hagel, if the Pentagon is going to be the lead authority on drone strikes. Not surprisingly, nobody asked the question at all."

Tim Starks writes about national security for CQ Roll Call.