The Central Intelligence Agency may be out of the armed drones business soon, according to a report out Wednesday morning, possibly granting more visibility to the Obama administration’s targeted killing program.

According to The Daily Beast, the White House is ready to approve a plan transferring authority to launch lethal missions in areas such as Pakistan from the CIA to the Department of Defense. Both DOD and the CIA currently have access to unmanned aerial vehicles, as drones are formally known, but use them in different ways for different purposes under different congressional authorities and different rules of transparency.

Should President Obama sign-off on the idea, the shift that would take place would not likely be immediately apparent to the public, but would go a long way to formalize the procedures in which drones are used. The process known as “institutionalization” has been in motion for over a year now, according to The Daily Beast, headed by newly-confirmed CIA Director John Brennan:

Brennan, who has presided over the administration’s drone program from almost day one of Obama’s presidency, has grown uncomfortable with the ad hoc and sometimes shifting rules that have governed it. Moreover, Brennan has publicly stated that he would like to see the CIA move away from the kinds of paramilitary operations it began after the September 11 attacks, and return to its more traditional role of gathering and analyzing intelligence.

Under the new structure, the CIA would still have a role in providing the intelligence necessary to identify targets, at least temporarily, but would no longer have operational control of lethal missions. That role in gathering intelligence means that the CIA’s use of unarmed drones for surveillance purposes is unlikely to be affected. While not a guarantee of greater transparency, placing the targeted killing program entirely under the Defense Department would mean that it would no longer be “covert” — or both secret and deniable by the government — but instead “clandestine” — meaning the administration would be unable to legally lie about operations.

The move mirrors an approach former Defense Department lawyer Jeh Johnson promoted in an appearance at Fordham University on Monday. Johnson is the latest in a long line of high-profile Democrats questioning the current structure of the targeted killing program and the secrecy surrounding it. In recent weeks, CAP Chair John Podesta, Sen. Ron Wyden (D-OR), and Rep. Keith Ellison (D-MN) have all called for greater openness from the Obama administration about the way the program is carried out.

Rep. Keith Ellison (D-MN) on Thursday stressed the need for more openness surrounding the Obama administration’s targeted killing program and the drones used to carry it out.

During an appearance on MSNBC, Ellison highlighted the need to set up an open legal architecture surrounding the program currently in operation in Yemen and Pakistan. That position falls in-line with both the sentiments of Sen. Ron Wyden (D-OR) and CAP Chair John Podesta’s recent op-ed in the Washington Post.

Ellison said he agreed with Podesta that the administration needs to go further to help set norms for the use of drones around the world:

JANSING: We should say the President did allow some members of the intelligence committee to see those memos, are you satisfied with that? Is it enough?

ELLISON: No, it’s not enough. I think Podesta is absolutely right on this issue. I don’t think the president has anything to fear. He’s the one who said let’s have a legal architecture. This is a chance for the United States to really lead the world. [...] We should lead the way. The President should not allow himself to be coming up on the backside of this. He should be helping to lead this effort.

Watch Ellison’s full interview here:

At present, the program’s full legal justification — including the administration’s interpretation of when Americans can be targeted overseas — is being held closely by the White House, which has so far ignored calls to declassify the Justice Department’s memos. While it allowed the Senate Select Committee on Intelligence view the memos as part of the deal to confirm CIA Director John Brennan, the White House sent staffers to sit with the committee members during their review, a move that Sen. Jay Rockefeller (D-WV) strongly objected to. “There was a minder who was sent in. I was unaware that that person was going to have to be there. It was an insult to me,” he said.

Speaking behind closed doors with the Senate Democratic Caucus, Obama indicated that he were he still in the Senate he would have “probably objected” to the White House’s continued secrecy as well.

Earlier this week, Ellison in his role as co-chair of the Congressional Progressive Caucus signed onto a letter from House Democrats to President Obama calling for the release of those documents to the full Congress. Ellison also expressed wariness surrounding the use of armed drones in combat in general, stating that there are legitimate and illegitimate ways in which they can be utilized. “We should only use this sort of technology in the circumstances to protect American lives to do so,” Ellison said. “But I think that the technology has outrun the rules.” Calling back to his previously published op-ed on the matter, Ellison said that he was glad that the conversation in Washington had finally shifted to oversight over the targeted killing program.

Speaking at a panel at George Washington Law School this morning, Sen. Ron Wyden (D-OR) indicated that his struggle with the Obama administration for more transparency on national security matters is just beginning.

Wyden was the opening speaker at a Citizens for Responsibility and Ethics in Washington event on drones, in which he laid out his position on the secrecy surrounding the Obama administration’s counterterrorism targeted killing program.

Wyden made clear during his talk that he believed that there are “certainly legitimate reasons” for the government to keep some matters secret, including the details of covert operations. Sources and methods — or the precise ways that intelligence is collected — are in a very different basket than keeping the law secret, Wyden explained. “Secret operations are different than secret laws,” Wyden said. What Wyden is firmly opposed to is secret interpretations of public laws by the Executive Branch without the conclusions being disclosed:

WYDEN: [W]e aren’t going to take a backseat to anybody — not anybody — on the question of protecting genuinely sensitive sources and operations. But I am also not going to take a backseat to anybody in the effort to try to make sure our public laws stay public. And that’s what this is, in effect, discussion is all about.

At the forefront of Wyden’s concerns is a set of classified memos from the Department of Justice’s Office of Legal Counsel laying out the justifications for when force can be used against American citizens overseas. An unclassified white paper summarizing those memos leaked to the press last month, stirring up the current debate.

Wyden indicated that he had spent the last two years asking the administration for access to the DOJ memos on targeting Americans abroad. As part of its deal to have John Brennan confirmed as CIA Director, the White House has turned over those memos to the Senate Select Committee on Intelligence, but has not declassified them as of yet. These memos, Wyden believes, as the official interpretation of the Executive Branch on how it reads current laws need to be made public. At present, there is no one place within the law that Americans can go to see what the standard is with regard to targeting Americans, Wyden said.

“I don’t buy that,” Wyden said when asked about whether the memos reveal too much in the way of operational details to be declassified. “That’s what we have redaction for.” Wyden was the only member of the Democratic Caucus to join Rand Paul’s nearly thirteen-hour long filibuster of John Brennan last week, though he disagreed with Paul on the forthrightness of the administration.

House Democrats earlier this week wrote to the White House also demanding the declassification of the DOJ memos, as well as answers related to the broader use of drones in warfare.

Several members of the Congressional Progressive Caucus have sent a letter [PDF] to the Obama administration demanding greater openness on all aspects of its counterterrorism-related targeted killing program.

The majority of the letter focuses on if and when armed drones could be used to target U.S. citizens on American soil, the topic of Sen. Rand Paul (R-KY)’s nearly thirteen-hour filibuster last week. Much like Sen. Paul, the Congresspeople behind the letter cite the vagaries of an unclassified white paper on when Americans could be considered viable targets as leaving them “deeply concerned.” That white paper — first leaked to the press last month — was a summary of several classified Department of Justice memos that go into further detail regarding the legal justification of the program.

In writing to President Obama, the members are calling for a full declassification of the DOJ memos related to targeting Americans and seeking to clarify what to them is an overly broad authority regarding the use of drones in carrying out administration policy, “including but not limited to”:

1. An unbounded geographic scope;
2. Unidentified ‘high-level’ officials with authority to approve kill-lists;
3. A vaguely defined definition of whether a capture is “feasible”;
4. An overly broad definition of the phrase “imminent threat,” which re-defines the word in a way that strays significantly from its traditional legal meaning; and
5. The suggestion that killing American citizens and others would be legitimate “under the Authorization for Use of Military Force and the inherent right to national self-defense.”

The questions put forward go beyond Paul’s concerns, which were almost entirely related to the domestic use of armed drones. Instead, the Progressive Caucus letter delves into the use of drones as a weapons platform overseas, particularly their use in “signature strikes“:

We also ask that you prepare a report for Congress outlining the architecture of your Administration’s drone program going forward, including your efforts to limit instances and remunerate victims of civilian causalities by signature drone strikes, broaden access to due process for identified targets and continue to structure the drone program within the framework of international law.

Many of the issues at play in the letter branch from the 2001 Authorization for the Use of Military Force that first cleared the path for retaliatory strikes against Al Qaeda, and has been used by the Obama administration as the justification for its strikes around the world against Al Qaeda and its affiliates. The broad nature of the AUMF has led to several Congressional Progressive Caucus members co-sponsoring a bill to fully repeal it, a move backed by the New York Times editorial board this weekend. Of those members, at least Rep. Keith Ellison (D-MN) would be in favor of replacing the AUMF with a narrower authorization, according to his office.

The Senate on Thursday voted to confirm John O. Brennan as the new Director of Central Intelligence, by a vote of 63-34, following what was at times a contentious confirmation process.

Brennan has spent the last four years as the top counterterrorism official in the White House in his role as Assistant to the President for Homeland Security and Counterterrorism. Originally a consolation prize, following his withdrawal from consideration as CIA Director in 2008, Brennan conveyed the role’s proximity to President Barack Obama into one that possessed a large deal of sway over the counterterrorism policies of the administration.

A second chance to lead the CIA for Brennan came following the surprise resignation of former Gen. David Petraeus in Oct. 2012. In the days and weeks after Obama named Brennan as Petraeus’ successor, however, he faced possible roadblocks from various corners. Sen. Lindsey Graham (R-SC) threatened to hold up confirmation until more information was handed over related to the Sept. 2012 terrorist attack in Benghazi, Libya that killed four Americans. Brennan then had to face questions about his role in the waterboarding of detainees during his time at the CIA under the George W. Bush administration.

Brennan received the approval of the Senate Select Committee on Intelligence on Tuesday, following a deal with the White House to provide Senators access to classified memos related to the administration’s ongoing targeted killing program. What could have been a smooth vote to confirm Brennan was held up by a nearly thirteen hour-long filibuster by Sen. Rand Paul (R-KY) over the potential use of armed drones in the United States.

After receiving a letter from Attorney General Eric Holder clarifying the administration’s position, Paul agreed to allow Brennan’s nomination to come to a vote. The vote for cloture passed easily by 81 votes to 16, paving the way for a swift confirmation vote only minutes thereafter.

Attorney General Eric Holder has responded to questions on the President’s authority to use drone strikes on U.S. soil in response to concerns about an overreach against civil liberties.

White House Press Secretary Jay Carney on Thursday announced that Holder had written to Sen. Rand Paul (R-KY) to clarify the administration’s stance on the use of armed drones to kill U.S. citizens on American soil. In the letter, Holder acceded to Paul’s request that he place in writing of what he told the Senate Judiciary Committee in a meeting before the panel on Wednesday, that a drone strike against an American citizen who is not an imminent threat would be unconstitutional:

CARNEY: Does the president have the authority to use a weaponized drone to kill an American not engaged in combat on American soil? The answer is no. The answer to that question is no.

Paul spent the majority of Wednesday filibustering John Brennan’s nomination as CIA Director to obtain Holder’s answer. A previous letter sent from Holder to Paul had not done enough to clarify the administration’s stance in Paul’s eyes.

Holder’s response to Paul was direct and to the point:

Dear Senator Paul:

It has come to my attention that you have now asked an additional question: “Does the President have the authority to use a weaponized drone to kill an American not engaged in combat on American soil?” The answer to that question is no.

Sincerely,

Eric H. Holder, Jr.

Fox News’ Megyn Kelly read Holder’s letter to Sen. Paul on-air, as the Senator had yet to receive it. “Hooray,” Paul responded. “For 13 hours yesterday we asked him that question and so there is a result and a victory under duress, and under public humiliation, the White House will respond and do the right thing.” He then told CNN’s Dana Bash that he was “happy” with the answer and would be dropping his hold on Brennan’s nomination.

While Sen. Rand Paul (R-KY) undoubtedly won the DC news cycle on Wednesday with his twelve-hour long filibuster against CIA Director nominee John Brennan, his opposition to drones is not as all-encompassing as you would think.

The coverage of the filibuster fixated on what appeared to be Paul’s unwavering opposition to the use of unmanned vehicles, commonly called drones. As Paul made clear, though, he was only speaking in opposition to their use in a narrow sense, as part of a targeted killing ordered against a U.S. citizen on American soil.

While the White House has so far ignored calls to declassify the Department of Justice memos laying out the administration’s legal argument, it has explained that drone strikes could not Constitutionally be carried out against an individual who was not an imminent threat, effectively answering Paul’s limited question.

Paul’s opposition to the use of drones began with his concerns about their use for surveillance purposes against U.S. citizens without a warrant. To this effect, Paul introduced in 2012 what he called the “Preserving Freedom From Unwarranted Surveillance Act,” that would ”prohibit the use of drones by the government” without a warrant. The Pentagon has pushed back against the need for this new legislation, arguing that the laws that apply to manned aircraft — such as small airplanes and helicopters — would necessarily apply to unmanned drones as well.

That worry about drones is not universal for Paul, however, as he’s less concerned when it comes to enforcing border security via drone. Laying out his stance on comprehensive immigration reform, Paul published an op-ed in the Washington Times making clear that he felt that border security had to be addressed before a path to citizenship could be enacted:

Border security, including drones, satellite and physical barriers, vigilant deportation of criminals and increased patrols would begin immediately and would be assessed at the end of one year by an investigator general from the Government Accountability Office.

Though he did not make it clear, it can be assumed that Paul was referring to drones of the unarmed variety, rather than advocating launching Hellfire missiles at immigrants attempting to cross the border.

Paul’s concerns about drones have also yet to extend into their use as a weapons platform in combating terror overseas. While holding the floor of the Senate, the junior Senator from Kentucky repeatedly acknowledged that strikes in Pakistan and Yemen have shown themselves effective. Paul also several times referenced the use of the tactic known as “signature strikes,” where groups of men between 16-55 who meet a certain profile are considered legitimate targets. These references were only spoken in opposition to the transfer of the tactic to being used against Americans, as Paul said he “didn’t want to say” whether their use as part of a strategy of targeted killing was in the right.

Sen. Rand Paul (R-KY) has long demanded a national conversation about President Obama’s claimed power to kill American citizens. On Wednesday, he took a big step towards starting one, using a rare “talking filibuster” to hold up the nomination of John Brennan to head the CIA and deliver an extended critique of the targeted killing of Americans on American soil.

Brennan played a critical role in the development and codification of the Obama Administration’s targeted killing program, so his nomination has become a flashpoint for Paul and others worried about the scope of the powers claimed in it. Publicly released documents, particularly the infamous CIA white paper outlining the legal thinking behind the strike on American citizen Anwar al-Awlaki, have not provided specific guidance on the territorial limits of the Presidential power to kill citizens. A more recent document, submitted to Congress by Attorney General Eric Holder, suggested that under “extraordinary” circumstances, such as Pearl Harbor or 9/11, the president could kill an American citizen on American soil. In testimony before the Senate Judiciary Committee on Wednesday, Holder specifically admitted that killing an American in the United States would be inappropriate and unconstitutional if the individual did not pose an imminent threat.

Throughout his filibuster, Paul repeatedly said that he would be willing to move to a vote on Brennan’s nomination if the Obama administration translated Holder’s reply into a written response and stated that it did not believe that the executive branch could target and kill Americans on American soil in most instances.

Paul acknowledged that it was unlikely that Obama would launch a drone strike against someone sleeping in their bed, but demanded clarification of what criteria the administration had for conducting targeted killing. While he initially questioned the principles behind so-called “signature strikes” against suspected terrorists not currently fighting,” Paul later shifted his focus to whether tactics used overseas could be transferred to American citizens within the U.S.
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