National Security Council spokesperson Caitlin Hayden provided this statement by email to McClatchy after the Obama administration was urged this week to reveal the legal foundations of its drone targeting:
The President noted in his State of the Union address that this "Administration has worked tirelessly to forge a durable legal and policy framework to guide our counterterrorism operations." Indeed, numerous senior Administration officials – including CIA Director John Brennan, Attorney General Eric Holder, former State Department Legal Adviser Harold Koh, and former Department of Defense General Counsel Jeh Johnson – have spoken publicly about this framework, providing an unprecedented level of transparency into how the Government conducts sensitive counterterrorism operations that have undermined terrorists’ ability to plot against U.S. interests.
We cannot discuss the sensitive details of specific operations but we will continue to disclose as much as we can – as soon as we can -- regarding the framework, the standards, and the process through which we approve such operations. As the President noted in his State of the Union Address, the Administration is committed to institutionalizing and explaining to the Congress and the public as much as possible about our drone policies, including the process for making strike decisions.
As part of the President's ongoing commitment to consult with Congress on national security matters, in February he directed the Department of Justice to provide the congressional Intelligence committees access to classified Office of Legal Counsel advice related to the subject of the Department of Justice White Paper. Again in March, the President directed the Department of Justice to provide the congressional Intelligence committees access to additional classified Office of Legal Counsel advice. We will continue working with the Congress to answer their questions and ensure they have the appropriate oversight of our programs.
We have made clear the major elements of the Administration’s approach to these issues, including the use of remotely piloted aircraft:
- A commitment to, whenever possible, allowing individuals from across the national security community to bring their perspectives and expertise to the process. As John Brennan articulated it during his 2012 Wilson Center speech: “We listen to departments and agencies across our national security team. We don’t just hear out differing views, we ask for them and encourage them. We discuss. We debate. We disagree. We consider the advantages and disadvantages of taking action.”
- Basing any use of lethal force on a sober assessment of the “most up-to-date intelligence, drawing on the full range of our intelligence capabilities.” Again, as John Brennan mentioned during his 2012 Wilson Center speech, this means that we continually do “what sound intelligence demands”: “we challenge it, we question it, including any assumptions on which it might be based.” And if we want to know more, “we may ask the intelligence community to go back and collect additional intelligence or refine its analysis so that a more informed decision can be made.”
- Scrupulous adherence to the rule of law. These speeches have all emphasized the Administration’s commitment to conducting these actions in accordance with all applicable law, including the laws of war. In particular, we have repeatedly emphasized the extraordinary care we take to ensure that these operations conform to the law of war principles of (1) necessity – the requirement that the target have definite military value; (2) distinction – the idea that only military objectives may be intentionally targeted and that civilians are protected from being intentionally targeted; (3) proportionality – the notion that the anticipated collateral damage of an action cannot be excessive in relation to the anticipated concrete and direct military advantage; and (4) humanity – a principle that requires us to use weapons that will not inflict unnecessary suffering.
- A recognition that we are establishing standards other nations may follow, such that we have established robust commitments to, among other things, determining whether the individual poses a significant threat to U.S. interests; determining that capture is not feasible; having a high degree of confidence, both in the identity of the target and that innocent civilians will not be harmed.
- A commitment to congressional oversight. We regularly provide the appropriate members of Congress and the committees who have oversight of our counterterrorism programs with briefings about our drone operations. We have also provided certain Members unprecedented access to highly classified and deliberative legal opinions explaining the legal rationale for certain strikes, including drone strikes that might target U.S. persons.
As the President said, he would “continue to engage Congress to ensure not only that our targeting, detention and prosecution of terrorists remains consistent with our laws and system of checks and balances, but that our efforts are even more transparent to the American people and to the world.” That remains our intention.