House Judiciary threatens subpoena over DOJ kill memos

The heads of the House Judiciary Committee are threatening to subpoena the Obama administration for access to its legal justification for killing suspected terrorists who are U.S. citizens.


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In a letter to President Obama on Wednesday, committee Chairman Bob Goodlatte (R-Va.) and ranking member John Conyers (D-Mich.) demanded that plans to view the documents be finalized by Thursday evening or they will issue a subpoena.

The move comes more than two months since the panel first requested access to the detailed Office of Legal Counsel (OLC) memos, which lay out the administration's legal support for targeting U.S. citizens who are suspected of being terrorists, pose an “imminent threat” to U.S. national security and for whom capture is not an option.

“If arrangements for our review of these materials are not finalized by COB tomorrow (Thursday, April 11, 2013), the committee will have no choice but to move forward with issuance of subpoenas for the documents,” wrote Goodlatte and Conyers.

On Wednesday, the administration allowed members of the Senate Judiciary Committee to view some of the memos, after the panel’s chairman, Sen. Patrick Leahy (D-Vt.), had waged a similar campaign for access to them, telling Attorney General Eric Holder that he would consider issuing a subpoena if left with no other alternative.

Both Judiciary committees have fought to gain access to the memos since February, arguing that they are tasked with overseeing the Justice Department (DOJ) and have a congressional right to see the legal analysis.

Until recently, the administration had only provided the OLC memos to the House and Senate Intelligence committees, which it did ahead of a hearing to consider confirming John Brennan as director of the CIA.

“Members of the House and Senate Intelligence Committees have been provided an opportunity to review at least some of these opinions,” wrote Goodlatte and Conyers on Wednesday.

“Today, members of the Senate Judiciary Committee were also given access to some, but not all, of the documents that we have requested. There is no reason why a similar bipartisan request from the House Judiciary Committee continues to go unanswered.”

Members of the House Judiciary Committee have been forced to rely on a DOJ white paper that was leaked to NBC News last month.

The white paper states that a lethal strike against a senior operational leader of al Qaeda — or an affiliated terrorist group — can occur if a three-part test is met: a high-ranking American intelligence official must have determined that the person poses an “imminent threat,” the person’s capture is not feasible and a strike on that person is conducted according to the laws of war governing use of force.

A final Senate vote on Brennan's confirmation was delayed last month by senators who asked for more information about the U.S. drone program. Sen. Rand Paul (R-Ky.) filibustered the vote until the administration told him that it could not legally kill U.S. citizens on American soil using a drone strike.

Holder told the Senate Judiciary panel, during its annual oversight hearing of the DOJ, that he was sympathetic to showing the committee members the OLC memos, and that he would try to make their case to other officials in charge of deciding whether to share the legal opinion.

In a speech at Northwestern University last March, Holder first laid out the administration’s justification for targeting U.S. citizens abroad, saying that the government’s definition of “imminent threat” consisted of three criteria: there was a limited open window for attacking the person, a grave possible harm that not attacking the target could have on U.S. civilians, and a strong likelihood that targeting the person would head off a future attack against the United States.

Concern over the government’s targeting of U.S. citizens abroad first came to a head in 2011, when it was revealed that U.S. officials targeted and killed American-born Anwar al-Awlaki in a drone strike. Al-Awlaki was widely known for inciting attacks against the United States, such as the 2009 Fort Hood mass shooting, the thwarted “underwear” bombing of a U.S.-bound plane the same year and the failed Times Square bombing in 2010.

Shortly after The Hill reported on Tuesday that the Senate Judiciary Committee would get access to the memos on Wednesday, the panel’s Constitution, Civil Rights and Human Rights subcommittee announced plans to hold a hearing next week on “Drone Wars: The Constitutional and Counterterrorism Implications of Targeted Killing.”

The White House declined to comment on this report.

--This report was updated at 7:40 p.m.