The law of drones

President Barack Obama's nominee to head the Central Intelligence Agency, John O. Brennan, was about as cagey as they come last week at his confirmation hearing before the Senate Intelligence Committee. Asked right off the bat by the committee chairwoman, Sen. Dianne Feinstein, whether he would be more forthcoming than his predecessors in apprising committee members of covert U.S. military operations abroad — particularly the administration's secret drone program of targeted killings — he vigorously affirmed that to be his intention. Then, for the next 31/2 hours, he politely declined to say virtually anything else of substance on the subject.

It was, in its way, a masterful performance by the veteran CIA operative who has led President Obama's counter-terrorism effort for the past four years. While there's probably something to be said for being tight-lipped if you're set to become the nation's chief spy, Mr. Brennan's artful evasions and calculated ambiguities on everything from the legality of drone strikes to the efficacy of enhanced interrogation techniques — he refused to call waterboarding "torture" — hardly lived up to his pledge of greater transparency. If anything, Congress' window onto matters of operational intelligence appears to be growing more opaque even to those of its members who are charged with overseeing the agency.

Mr. Brennan's hearing came just a few days after the leak of a Justice Department memo — first reported by CBS News — explaining the legal basis for drone strikes against American citizens abroad. The document has all the earmarks of a hastily conceived rationale created after the fact to justify a policy the administration had already determined to follow. Beneath this veneer of tortured legalese and circular reasoning, its import was clear: The president can legally authorize the killing of anyone he deems to be a threat to national security, and he can to do so anywhere in the world, at any time and without first obtaining permission from either Congress or the courts.

While polls show that Americans generally support the drone program, the Obama administration's policy on targeted killings represents a stunning expansion of presidential authority. Under the terms of engagement outlined in the leaked document, individuals designated as high-level operational commanders of al-Qaida or affiliated groups have no right under the Constitution to due process, to confront their accusers or to offer evidence in their defense, even if they are U.S. citizens.

All that's required for their being placed on a government kill list is the opinion of an "informed" official that they pose an "imminent" threat to American lives or interests. Not only does the document contain no definition of what qualifies an official as being "informed," it turns the concept of "imminence" on its head. There's no need for the government to show the existence of any specific plot or target of an attack; it's enough if officials merely believe a person is engaging in a "continuing" effort to harm Americans.

That's a pretty broad mandate, and presumably it provided the legal underpinnings for the targeted killing of Anwar al-Awlaki, the American-born cleric who joined al-Qaida in Yemen and was killed by a drone strike there in 2011. It was hardly reassuring that, when asked about the legality of that episode, Mr. Brennan stonewalled the Senate Committee by saying, "I'm not going to talk about any particular operation or responsibility on the part of the U.S. government for anything whatever." He refused to even give the committee a list of countries where drone strikes had been carried out. So much for transparency.

To her credit, Senator Feinstein didn't seem inclined to let matters rest there. Later during the hearing, she raised the possibility of creating a special court to evaluate evidence against American citizens who might be targeted by the drone program, along the lines of the Foreign Intelligence Surveillance Court, which oversees wiretapping on U.S. soil. Mr. Brennan reluctantly conceded the idea "was certainly worthy of discussion" but offered no encouragement on its prospects.

Yet this is an area that cries out for congressional oversight. Ms. Feinstein was correct in saying the administration risks becoming a victim of its own secrecy as opposition to drone attacks sparks anti-American demonstrations in Afghanistan, Pakistan, Yemen and elsewhere. Nor will the U.S. retain its monopoly on drone warfare much longer. Other countries will soon develop and deploy these weapons as well, and if we don't establish clear guidelines for their use, the result could be anarchy and even more instability. But in order to do that, we need an accounting of what the government is doing even when it is acting covertly. Congress provides our only eyes on that, so we hope it will take up Ms. Feinstein's idea of establishing a special court for drone operations without delay.

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