challenges

Reporting from Washington — A Democrat on the Senate Intelligence Committee says it is “unacceptable” that the Obama administration is refusing to provide Congress with the secret legal opinions cited to justify killing American citizens during counterterrorism operations.

Sen. Ron Wyden, an Oregon Democrat who has pushed against the notion of classified legal opinions, expressed his concerns in a letter to Atty. Gen. Eric H. Holder Jr. on Wednesday.

Previously, Wyden has complained about the refusal of the Justice Department to make public secret interpretations of domestic-surveillance law. On Wednesday, the senator said he wanted to know just how much authority President Obama claims when it comes to the matter of killing American terrorism suspects, but that his request, made last April, to see the classified legal opinions exploring that topic has been rebuffed.

“How much evidence does the president need to decide that a particular American is part of a terrorist group?” Wyden wrote. “Does the president have to provide individual Americans with an opportunity to surrender before using lethal force against them? Is the president’s authority to kill Americans based on authorization from Congress or his own authority as commander-in-chief? Can the president order intelligence agencies to kill an American who is inside the United States?”

Sen. Patrick J. Leahy, (D-Vt.), chairman of the Judiciary Committee, also has asked for copies of any classified legal opinions dealing with killing American citizens — but has not been provided any, his office said. At a Nov. 8, 2011, congressional hearing, Holder told Leahy that he could not “address whether or not there is an opinion in this area.”

For the executive branch to claim that intelligence agencies have the authority to knowingly kill American citizens while refusing to provide Congress with the legal opinions explaining its reasoning “represents an indefensible assertion of executive prerogative, and I expected better from the Obama Administration,” Wyden wrote to Holder.

A Justice Department official said the department is reviewing Wyden’s letter and will respond later.

“It would be entirely lawful for the United States to target high-level leaders of enemy forces, regardless of their nationality, who are plotting to kill Americans both under the authority provided by Congress in its use of military force in the armed conflict with Al Qaeda, the Taliban and associated forces as well as established international law that recognizes our right of self-defense,” the official said.

Last month, officials said Holder would be making a speech in the coming weeks laying out the legal justification for lethal strikes against Americans, such as the September CIA drone strike in Yemen that killed Anwar Awlaki, a U.S.-born citizen accused by U.S. officials of helping plan terrorist attacks against American targets. Wyden said he welcomed that.

U.S. officials have said that the CIA goes through extra legal steps when targeting a U.S. citizen as part of its drone strike program.

In early 2010, then-Director of National Intelligence Dennis Blair told the House Intelligence Committee that the intelligence community “take[s] direct action against terrorists” and added that “if we think that direct action will involve killing an American, we get specific permission to do that.”

Wyden said he is not suggesting “that the president has no authority to act in this area. If American citizens choose to take up arms against the United States during times of war, there can undoubtedly be some circumstances under which the president has the authority to use lethal force against those Americans. For example, there is no question that President Lincoln had the authority to order Union troops to take military action against Confederate forces during the Civil War.”

However, he said, the question becomes thornier when the U.S. is at war around the world with terrorists who don’t wear uniforms. “And it is critically important for the public’s elected representatives to ensure that these questions are asked and answered in a manner consistent with American laws and American values,” Wyden wrote.

Members of Congress need to understand how or whether the executive branch has attempted to answer these questions so that they can decide for themselves whether this authority has been properly defined, Wyden wrote.

“Americans have a particular right to understand how the U.S. government interprets the statement in the Bill of Rights that no American shall ‘be deprived of life, liberty, or property, without due process of law,’” Wyden wrote. “The federal government’s official views about the president’s authority to kill specific Americans who have not necessarily been convicted of a crime are not a matter to be settled in secret by a small number of government lawyers.”

A Washington Post-ABC News poll released Wednesday found that 83% of respondents said they approve of the use of drone strikes against terrorist suspects overseas. Sixty-five percent in the poll, conducted by telephone Feb. 1-4, said that American citizens suspected of terrorism are legitimate targets. Democrats approved of the drone strikes on American citizens by a 58%-33% margin, and liberals approved of them, 55%-35%, according to the Post’s blog, the Plum Line.

[email protected]

[For the record, 9:41 a.m., Feb. 10: An earlier version of this post incorrectly reported that Anwar Awlaki, a U.S. citizen killed by a CIA drone strike last year in Yemen, was born in Yemen. He was born in New Mexico.]

A Virginia transportation security officer is accusing the U.S. Department of Homeland Security of sex discrimination over a policy that bars transgender officers from performing security screening pat-downs, according to a federal lawsuit.

The Transportation Security Administration, which operates under DHS, enacted the policy in February to comply with President Trump’s executive order declaring two unchangeable sexes: male and female.

According to internal documents explaining the policy change that the Associated Press obtained from four independent sources, including one current and two former TSA workers, “transgender officers will no longer engage in pat-down duties, which are conducted based on both the traveler’s and officer’s biological sex. In addition, transgender officers will no longer serve as a TSA-required witness when a traveler elects to have a pat-down conducted in a private screening area.”

Until February, TSA assigned work consistent with officers’ gender identity under a 2021 management directive. The agency told the AP it rescinded that directive to comply with Trump’s Jan. 20 executive order.

Although transgender officers “shall continue to be eligible to perform all other security screening functions consistent with their certifications,” and must attend all required training, they will not be allowed to demonstrate how to conduct pat-downs as part of their training or while training others, according to the internal documents.

A transgender officer at Dulles International Airport, Danielle Mittereder, alleges in her lawsuit filed Friday that the new policy — which also bars her from using TSA facility restrooms that align with her gender identity — violates civil rights law.

“Solely because she is transgender, TSA now prohibits Plaintiff from conducting core functions of her job, impedes her advancement to higher-level positions and specialized certifications, excludes her from TSA-controlled facilities, and subjects her identity to unwanted and undue scrutiny each workday,” the complaint says.

Mittereder declined to speak with the AP but her lawyer, Jonathan Puth, called TSA’s policy “terribly demeaning and 100% illegal.”

TSA spokesperson Russell Read declined to comment, citing pending litigation. But he said the new policy directs that “Male Transportation Security Officers will conduct pat-down procedures on male passengers and female Transportation Security Officers will conduct pat-down procedures on female passengers, based on operational needs.”

The legal battle comes amid mounting reports of workplace discrimination against transgender federal employees during Trump’s second administration. It is also happening at a time when TSA’s ranks are already stretched thin due to the ongoing government shutdown that has left thousands of agents working without pay.

Other transgender officers describe similar challenges to Mittereder.

Kai Regan worked for six years at Harry Reid International Airport in Las Vegas, but retired in July in large part because of the new policy. Regan, who is not involved in the Virginia case, transitioned from female to male in 2021 and said he had conducted pat-downs on men without issue until the policy change.

“It made me feel inadequate at my job, not because I can’t physically do it but because they put that on me,” said the 61-year-old, who worried that he would soon be fired for his gender identity, so he retired earlier than planned rather than “waiting for the bomb to drop.”

Skye Perryman, president and CEO of Democracy Forward — a legal organization that has repeatedly challenged the second Trump administration in court — called TSA’s policy “arbitrary and discriminatory,” adding: “There’s no evidence or data we’re aware of to suggest that a person can’t perform their duties satisfactorily as a TSA agent based on their gender identity.”

DHS pushed back on assertions by some legal experts that its policy is discriminatory.

“Does the AP want female travelers to be subjected to pat-downs by male TSA officers?” Homeland Security spokesperson Tricia McLaughlin asked in a written response to questions by the AP. “What a useless and fundamentally dangerous idea, to prioritize mental delusion over the comfort and safety of American travelers.”

Airport security expert and University of Illinois Urbana-Champaign professor Sheldon H. Jacobson, whose research contributed to the design of TSA PreCheck, said that the practice of matching the officer’s sex to the passenger’s is aimed at minimizing passenger discomfort during screening. Travelers can generally request another officer if they prefer, he added.

Deciding where transgender officers fit into this practice “creates a little bit of uncertainty,” Jacobson said. But because transgender officers likely make up a small percent of TSA’s workforce, he said the new policy is unlikely to cause major delays.

“It could be a bit of an inconvenience, but it would not inhibit the operation of the airport security checkpoint,” Jacobson said.

TSA’s policy for passengers is that they be screened based on physical appearance as judged by an officer, according to internal documents. If a passenger corrects an officer’s assumption, “the traveler should be patted down based on his/her declared sex.” For passengers who tell an officer “that they are neither a male nor female,” the policy says officers must advise “that pat-down screening must be conducted by an officer of the same sex,” and to contact a supervisor if concerns persist.

The documents also say that transgender officers “will not be adversely affected” in pay, promotions or awards, and that TSA “is committed to providing a work environment free from unlawful discrimination and retaliation.”

But the lawsuit argues otherwise, saying the policy impedes Mittereder’s career prospects because “all paths toward advancement require that she be able to perform pat-downs and train others to do so,” Puth said.

According to the lawsuit, Mittereder started in her role in June 2024 and never received complaints related to her job performance, including pat-down responsibilities. Supervisors awarded her the highest-available performance rating and “have praised her professionalism, skills, knowledge, and rapport with fellow officers and the public,” the lawsuit said.

“This is somebody who is really dedicated to her job and wants to make a career at TSA,” Puth said. “And while her gender identity was never an issue for her in the past, all of a sudden it’s something that has to be confronted every single day.”

Being unable to perform her full job duties has caused Mittereder to suffer fear, anxiety and depression, as well as embarrassment and humiliation by forcing her to disclose her gender identity to co-workers, the complaint says. It adds that the ban places additional burden on already-outnumbered female officers who have to pick up Mittereder’s pat-down duties.

American Federation of Government Employees National President Everett Kelley urged TSA leadership to reconsider the policy “for the good of its workforce and the flying public.”

“This policy does nothing to improve airport security,” Kelley said, “and in fact could lead to delays in the screening of airline passengers since it means there will be fewer officers available to perform pat-down searches.”

Savage writes for the Associated Press. AP writer Rio Yamat in Las Vegas contributed to this report.

A Virginia transportation security officer has accused the United States Department of Homeland Security (DHS) of sex discrimination over a policy that bars transgender officers from performing security screening pat-downs, according to a federal lawsuit.

The Transportation Security Administration (TSA), which operates under the DHS, enacted the policy in February to comply with President Donald Trump’s executive order declaring two unchangeable sexes: male and female.

The Associated Press (AP) news agency obtained internal documents explaining the policy change from four independent sources, including one current and two former TSA workers.

Those documents explain that “transgender officers will no longer engage in pat-down duties, which are conducted based on both the traveller’s and officer’s biological sex. In addition, transgender officers will no longer serve as a TSA-required witness when a traveller elects to have a pat-down conducted in a private screening area”.

Until February, the TSA assigned officers work consistent with their gender identity, based on a 2021 management directive. The agency told the AP that it rescinded this directive to comply with Trump’s January 20 executive order.

Although transgender officers “shall continue to be eligible to perform all other security screening functions consistent with their certifications” and must attend all required training, they will not be allowed to demonstrate how to conduct pat-downs as part of their training or while training others, according to the internal documents.

A transgender officer at Dulles international airport, Danielle Mittereder, alleged in her lawsuit filed on Friday that the new policy, which also bars her from using TSA facility restrooms that align with her gender identity, violates civil rights law.

“Solely because she is transgender, TSA now prohibits Plaintiff from conducting core functions of her job, impedes her advancement to higher-level positions and specialised certifications, excludes her from TSA-controlled facilities, and subjects her identity to unwanted and undue scrutiny each workday,” the complaint says.

Mittereder declined to speak with the AP, but her lawyer, Jonathan Puth, called the TSA policy “terribly demeaning and 100 percent illegal”.

TSA spokesperson Russell Read declined to comment, citing pending litigation. But he said the new policy directs that “male Transportation Security Officers will conduct pat-down procedures on male passengers, and female Transportation Security Officers will conduct pat-down procedures on female passengers, based on operational needs”.

The legal battle comes amid mounting reports of workplace discrimination against transgender federal employees during Trump’s second administration. It is also happening at a time when the TSA’s ranks are already stretched thin due to the ongoing government shutdown that has left thousands of agents working without pay.

Other transgender officers describe similar challenges to Mittereder.

Kai Regan worked for six years at Harry Reid international airport in Las Vegas before leaving in July, in large part because of the new policy.

Worried that he would be fired for his gender identity, he retired earlier than planned rather than “waiting for the bomb to drop”.

Regan, who is not involved in the Virginia case, transitioned from female to male in 2021. He said he had conducted pat-downs on men without issue until the policy change.

“It made me feel inadequate at my job, not because I can’t physically do it but because they put that on me,” said the 61-year-old.

Skye Perryman, president and CEO of Democracy Forward, a legal organisation that has repeatedly challenged the second Trump administration in court, called the TSA policy “arbitrary and discriminatory”.

“There’s no evidence or data we’re aware of to suggest that a person can’t perform their duties satisfactorily as a TSA agent based on their gender identity,” Perryman said.

The DHS pushed back on assertions by some legal experts that its policy is discriminatory.

“Does the AP want female travellers to be subjected to pat-downs by male TSA officers?” Homeland Security spokesperson Tricia McLaughlin asked in a written response to questions by the AP. “What a useless and fundamentally dangerous idea, to prioritise mental delusion over the comfort and safety of American travellers.”

Airport security expert and University of Illinois Urbana-Champaign professor Sheldon H Jacobson, whose research contributed to the design of TSA PreCheck, said that the practice of matching the officer’s sex to the passenger’s is aimed at minimising passenger discomfort during screening.

Travellers can generally request another officer if they prefer, he added.

Deciding where transgender officers fit into this practice “creates a little bit of uncertainty”, Jacobson said. But because transgender officers likely make up a small percent of the TSA’s workforce, he said the new policy is unlikely to cause major delays.

“It could be a bit of an inconvenience, but it would not inhibit the operation of the airport security checkpoint,” Jacobson said.

The TSA’s policy for passengers is that they be screened based on physical appearance as judged by an officer, according to internal documents. If a passenger corrects an officer’s assumption, “the traveller should be patted down based on his/her declared sex”.

For passengers who tell an officer “that they are neither a male nor female”, the policy says officers must advise “that pat-down screening must be conducted by an officer of the same sex” and contact a supervisor if concerns persist.

The documents also say that transgender officers “will not be adversely affected” in pay, promotions or awards, and that the TSA “is committed to providing a work environment free from unlawful discrimination and retaliation”.

But the lawsuit argues otherwise, saying the policy impedes Mittereder’s career prospects because “all paths toward advancement require that she be able to perform pat-downs and train others to do so”, Puth said.

According to the lawsuit, Mittereder started in her role in June 2024 and never received complaints related to her job performance, including pat-down responsibilities. Supervisors awarded her the highest-available performance rating, and “have praised her professionalism, skills, knowledge, and rapport with fellow officers and the public”, the lawsuit said.

“This is somebody who is really dedicated to her job and wants to make a career at TSA,” Puth said. “And while her gender identity was never an issue for her in the past, all of a sudden, it’s something that has to be confronted every single day.”

Being unable to perform her full job duties has caused Mittereder to suffer fear, anxiety and depression, as well as embarrassment and humiliation by forcing her to disclose her gender identity to co-workers, the complaint says.

It adds that the ban places an additional burden on already-outnumbered female officers who have to pick up Mittereder’s pat-down duties.

American Federation of Government Employees national president Everett Kelley urged the TSA leadership to reconsider the policy “for the good of its workforce and the flying public”.

“This policy does nothing to improve airport security,” Kelley said, “and in fact could lead to delays in the screening of airline passengers since it means there will be fewer officers available to perform pat-down searches”.