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  • Brennan Nomination

    by Senator Ron Wyden

    Posted on 2013-03-06

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    WYDEN. Mr. President, the issue of American security and American freedom really does not get enough discussion here in the Senate. It is my view that the Senator from Kentucky has made a number of important points this day, and I would like to take a few minutes to lay out my views on this issue and then pose a question to my colleague from Kentucky. We have talked often about these issues. I always learn a great deal.

    Of course the Senate will be voting on the nomination of John Brennan, the Deputy National Security Adviser, to be the Director of the Central Intelligence Agency. I voted in favor of Mr. Brennan during Tuesday's Intelligence Committee meeting, and I intend to vote for Mr. Brennan on the floor. Virtually every member of the Intelligence Committee now, in my view, believes Mr. Brennan has substantial national security expertise and experience, and it is certainly my hope that he will be the principled and effective leader the CIA needs and deserves.

    I think Senator Paul and I agree that this nomination also provides a very important opportunity for the U.S. Senate to consider the government's rules and policies on the targeted killings of Americans, and that, of course, has been a central pillar of our Nation's counterterror strategy.

    For several years now, I and colleagues--Senator Paul as well--have been seeking to get more information about the executive branch's rules for conducting targeted killings of Americans. I am pleased that after considerable efforts--efforts really that should not have to have been taken to get documents that the Intelligence Committee has been entitled to for some time--the committee has now received those secret legal opinions.

    To be clear--and this is a point Senator Paul made in the course of this discussion--targeted killings of enemy fighters, including targeted killings that involve the use of drones, can be a legitimate wartime tactic. If an American citizen chooses to take up arms against the United States, there will absolutely be circumstances in which the President has the authority to use lethal force against that American.

    But I think it has been our view--a view that I hold and that I know Senator Paul holds--that the executive branch should not be allowed to conduct such a serious and far-reaching program by themselves without any scrutiny because that is not how American democracy works. That is not what our system is about. Our unique form of government is based on a system of checks and balances that will be here long after the current President and individual Senators are gone.

    From time to time, the Senator from Kentucky and I say we ought to have something that we call a checks and balances caucus here in the Senate. Those checks and balances depend upon robust congressional oversight, and frankly they depend on bringing the public into this discussion as well, that there be public oversight.

    We share the view that details about individual operations do need to be kept secret, but the Congress and the public need to know what the rules for targeted killings are so they can make sure, as the Senator has touched on in the course of this day, that American security and American values are both being protected. It is almost as if we have a constitutional teeter-totter: we want both our security and our liberty. This is especially true when it comes to the rules for conducting targeted killings of Americans.

    What it comes down to is every American has the right to know when their government believes it is allowed to kill them. Now the executive branch has gradually provided Congress with much of its analyses on this crucial topic, but I think more still needs to be [[Page S1176]] done to ensure that we understand fully the implications of what these heretofore secret opinions contain and we have a chance to discuss them as well.

    In his capacity as Deputy National Security Adviser, John Brennan has served as the President's top counterterrorism adviser and one of the administration's chief spokesmen regarding targeted killing and the use of drones. He would continue to play a decisive role in U.S. counterterror effort if he is confirmed as Director of the CIA, and the Intelligence Committee is charged with conducting vigilant oversight of these particular efforts.

    A number of colleagues on the Senate Intelligence Committee of both political parties I think share a number of the views that Senator Paul and a number on this side of the aisle have been expressing today and in the past few days. I would especially like to express my appreciation to the former chairman of the Intelligence Committee, Senator Rockefeller. There is no one more committed to the principles the CIA stands for. There is no individual more committed to the principles the CIA stands for than Senator Rockefeller, and he believes more needs to be done to ensure that Congress has the power to do responsible oversight. Senator Udall, Senator Collins, and Senator Heinrich are all ones who share that view as well. In doing that, we recognize that we have a responsibility and that ultimately it is up to American voters to decide whether Congress is fulfilling its obligation to conduct vigorous oversight of the executive branch's actions and activities.

    Let me then turn to the question that has received most of the attention today and is really about what I would like to explore for a moment or two with my colleague from Kentucky. The President has also said--I was encouraged by a number of his comments, including the State of the Union Address--that with respect to counterterrorism efforts, no one should take his word for it that the administration is doing things the right way. As part of that, he said he was going to engage the American people in a discussion of these kinds of issues. When it comes to continuing the public debate about the rules for conducting targeted killings, there are a number of questions which need to be explored. One question I will address to Senator Paul involves the question he and I have been interested in for some time, and that is the question of the geographic limitation with respect to the use of lethal authority.

    Senator Paul and I--as well as others--have been asking for some time: What are the limits with respect to these lethal authorities, and in particular whether they can be used inside the United States? I have listened to a bit of the comments made by Senator Paul concerning the confirmation hearing tomorrow. The point the Senator has made this afternoon is an issue I and others have asked of the Attorney General for some time, and we have not been able to get an answer.

    In recent weeks Senator Paul has sent a number of letters on this topic. He has received two responses and he has shared them with me. For purposes of this question, I think the response from John Brennan-- and he stated his view on this quite clearly--was quite constructive. He said the CIA does not conduct lethal operations inside the United States, and most importantly--as per the conversations the Senator from Kentucky and I have had--Mr. Brennan said the CIA does not have the authority to conduct those operations.

    He was unequivocal with respect to what would happen if he was confirmed as the head of the CIA, that he would not have the authority to conduct those operations. So for purposes of anybody who is kind of keeping score, I just say that Mr. Brennan--on the questions the Senator from Kentucky and I have been interested in--was clear and forthright. I have been interested in this for some time. I am glad the Senator from Kentucky has asked the question. We have now gotten an answer that is unequivocal from Mr. Brennan.

    That brings us to the second response from Attorney General Holder. This letter repeated the statement that the U.S. Government has not carried out any drone strikes inside the United States and that the Obama administration has no intention of doing so. It goes on to say that the Obama administration ``rejects the use of military force where well-established law enforcement authorities in this country provide the best means for incapacitating a terrorist threat.'' I would certainly agree with this position. It is clear to me that prosecutions in Federal court provide tough effective means for dealing with terrorist suspects, which is why there are a great many terrorists who are now sitting in American prisons today locked behind bars and exactly where they belong.

    The Attorney General went on to state: It is possible . . . to imagine an extraordinary circumstance--Such as Pearl Harbor or the 9/11 attacks--in which it would be necessary and appropriate under the Constitution and . . . laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.

    This is what I wish to unpack a little bit with my colleague from Kentucky after asking this question a number of times and thinking a lot about what the answer ought to be. On this particular issue it seems to me the Attorney General has certainly moved in the direction of what we wanted to hear. I want to kind of outline it, and I think we agree on most of it, but I want to have a chance to exchange some thoughts.

    One of the core principles of American democracy is that we do not ask our military to patrol our streets. It was important to me to hear the Attorney General emphasize that principle. I know there are some who believe the military ought to be given more domestic counterterror responsibilities such as capturing and detaining terrorist suspects inside the country. I do not share that view, and I know the Senator from Kentucky does not share that view. I am grateful the Obama administration has now said they don't share that view either. In fact, as I have talked about with a number of colleagues, I actually voted against the annual Defense authorization bill for the past 2 years because I was concerned that those two bills didn't adequately address that particular principle.

    The Attorney General suggested what I think we would all consider an unlikely scenario, the Pearl Harbor and 9/11 attacks, in which it would be lawful and appropriate for the President to use military force inside the United States. As I read that statement--and this is the point of my question to my friend from Kentucky--it sounds a lot like the language that is in article 4 of the Constitution which directs the U.S. Government to protect individual States from invasion. In my judgment, if the United States is being attacked by a foreign power, such as the 1941 attack on Pearl Harbor, the President can indeed have the military power to use the military to defend our country.

    The reason I have been asking this question and have been interested in exploring it with my colleague from Kentucky is that I think it is extremely important to establish that unless we have an extraordinary situation, such as Pearl Harbor, the President should not go around ordering the military to use lethal force inside the United States. Our military--we are very proud of them--plays a vital role in efforts to combat terrorism overseas, but here at home we rely on the FBI and other law enforcement agencies to track down the terrorists, and they do their job well.

    I thought it was helpful to see the Attorney General, as part of what has been discussed here, clarify and establish that the President can only use military force inside the United States in extraordinary circumstances such as the Pearl Harbor attack. The Senator from Kentucky and I have had discussions over this, and I thought about it overnight and thought about our discussions. My sense is that the Senator from Kentucky doesn't believe the Attorney General's response was clear enough. I very much respect his view on this point.

    One of the reasons why I wanted to walk briefly through a little bit of history is that I think there are some issues still to be debated. My colleague has certainly been correct in asking valid questions because the Attorney General has left open the possibility of using military force inside the United [[Page S1177]] States outside of the extraordinary Pearl Harbor circumstance I have mentioned.

    So, through the Chair, I ask the Senator: I think the Senator is raising some important questions. In fact, my friend has asked some of the most important questions that we could be asking here on the floor of the Senate. It seems to me the Attorney General has ruled out using military force inside the United States except in cases of an actual attack by a foreign power. I understand why my colleague from Kentucky would say we ought to be engaging more with the administration and asking for additional insight. I want it understood that I have great respect for his effort to ask these kinds of questions and force them to be debated on the floor. Senator Paul has certainly been digging into these issues in great detail. Frankly, on the question of how we balance American security and American liberty, we have worked together often, and we are certainly going to be working together in the future on these issues in the days ahead.

    I wish to allow the Senator from Kentucky to respond to my question. I ask that my friend recognize that while we might differ a bit on the aspect of the Attorney General's response which I have cited this afternoon where there would be an instance of an extraordinary threat to our country, I do see--almost as part of what article 4 is about-- the President's ability to defend us in those kinds of situations. I know my colleague from Kentucky may see it differently, and, frankly, he is raising important issues. I am interested in his thoughts on that this afternoon.

    The PRESIDING OFFICER (Mr. Brown). The Senator from Kentucky.

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