[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
DRONES AND THE WAR ON TERROR: WHEN CAN THE U.S. TARGET ALLEGED AMERICAN
TERRORISTS OVERSEAS?
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
FEBRUARY 27, 2013
__________
Serial No. 113-2
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
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COMMITTEE ON THE JUDICIARY
BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin JERROLD NADLER, New York
HOWARD COBLE, North Carolina ROBERT C. ``BOBBY'' SCOTT,
LAMAR SMITH, Texas Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio JUDY CHU, California
TED POE, Texas TED DEUTCH, Florida
JASON CHAFFETZ, Utah LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania KAREN BASS, California
TREY GOWDY, South Carolina CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada SUZAN DELBENE, Washington
RAUL LABRADOR, Idaho JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
KEITH ROTHFUS, Pennsylvania
Shelley Husband, Chief of Staff & General Counsel
Perry Apelbaum, Minority Staff Director & Chief Counsel
C O N T E N T S
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FEBRUARY 27, 2013
Page
OPENING STATEMENTS
The Honorable Bob Goodlatte, a Representative in Congress from
the State of Virginia, and Chairman, Committee on the Judiciary 1
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 3
WITNESSES
John B. Bellinger, III, Partner, Arnold & Porter LLP
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Robert Chesney, Charles I. Francis Professor in Law, Associate
Dean for Academic Affairs, University of Texas School of Law
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Benjamin Wittes, Senior Fellow, The Brookings Institution
Oral Testimony................................................. 35
Prepared Statement............................................. 37
Stephen I. Vladeck, Professor of Law, Associate Dean for
Scholarship, American University Washington College of Law
Oral Testimony................................................. 54
Prepared Statement............................................. 58
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Ranking Member, Committee on the Judiciary..................... 4
Prepared Statement of the Honorable Ted Poe, a Representative in
Congress from the State of Texas, and Member, Committee on the
Judiciary...................................................... 5
Material submitted by the Honorable Ted Poe, a Representative in
Congress from the State of Texas, and Member, Committee on the
Judiciary...................................................... 86
DRONES AND THE WAR ON TERROR: WHEN CAN THE U.S. TARGET ALLEGED AMERICAN
TERRORISTS OVERSEAS?
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WEDNESDAY, FEBRUARY 27, 2013
House of Representatives
Committee on the Judiciary
Washington, DC.
The Committee met, pursuant to call, at 10:09 a.m., in room
2141, Rayburn House Office Building, the Honorable Bob
Goodlatte (Chairman of the Committee) presiding.
Present: Representatives Goodlatte, Chabot, Issa, King,
Franks, Gohmert, Jordan, Poe, Chaffetz, Marino, Gowdy,
Labrador, Holding, Collins, DeSantis, Rothfus, Conyers, Nadler,
Scott, Lofgren, Johnson, Pierluisi, Deutch, Bass, DelBene, and
Garcia.
Staff Present: (Majority) Shelley Husband, Chief of Staff &
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief
Counsel; Allison Halataei, Parliamentarian & General Counsel;
Sam Ramer, Counsel; Kelsey Deterding, Clerk; (Minority) Perry
Apelbaum, Staff Director & Chief Counsel; and Danielle Brown,
Parliamentarian; and Aaron Hiller, Counsel.
Mr. Goodlatte. Good morning. The Judiciary Committee will
come to order.
Without objection, the Chair is authorized to declare
recesses of the Committee at any time, and we welcome everyone
to today's hearing on ``Drones and the War on Terror: When Can
the U.S. Target Alleged American Terrorists Overseas?''
I will recognize myself first for an opening statement. On
February 4, 2013, a confidential Justice Department white paper
outlining the legal justification for targeted killings of U.S.
citizens overseas was leaked to NBC News. The leak of this
white paper brought renewed attention to an issue largely
ignored during President Obama's tenure. Is the targeted
killing of alleged American terrorists appropriate and under
what circumstances?
The white paper also confirms a palpable shift in war on
terror policy by this President. In 2007, Barack Obama, the
then-junior Senator from Illinois, laid out his position on the
war on terror. ``To build a better, freer world, we must first
behave in ways that reflect the decency and aspirations of the
American people. This means ending the practices of shipping
away prisoners in the dead of night to be tortured in far-off
countries, of detaining thousands without charge or trial, of
maintaining a network of secret prisons to jail people beyond
the reach of the law.''
The same President who opposes the detention of foreign
terrorists, who opposes the use of enhanced interrogation
techniques on foreign terrorists, and who attempted to bring
foreign terrorists to trial in New York City is now personally
approving the killing of Americans. Ironically, the detention
facility in Guantanamo remains open, and Khalid Sheikh Mohammed
and his co-conspirators are being tried before a military
commission.
Following the release of the white paper, a bipartisan
group of Committee Members requested the opportunity to review
the memos that formed the basis of the white paper. Our request
was denied.
One of President Obama's first acts as President was to
release the Bush Justice Department's enhanced interrogation
techniques memos to the public. But he now refuses to provide
his Justice Department's targeted killing memos not just to the
public, but even to congressional overseers. We also invited
the Justice Department to testify today. That request was
denied, too.
According to at least one estimate, drone strikes against
suspected al-Qaeda terrorists have increased sixfold under the
Obama administration. Anywhere from 2,500 to 4,000 people have
been killed by these strikes. What is more, this Administration
is not just targeting foreign fighters, but American citizens
as well.
President Obama ordered the killing of Anwar al-Awlaki, the
American-born al-Qaeda cleric. In September of last year, U.S.
forces killed al-Awlaki and his 16-year-old son in a drone
strike in Yemen. America now knows the criteria used to
nominate an American for targeted killing.
The white paper sets forth a legal framework for when the
U.S. Government can use lethal force against a U.S. citizen who
is a senior operational leader of al-Qaeda or an associated
force and is located in a foreign country outside the area of
active hostilities. The Justice Department claims that in such
a case, lethal force would be lawful where three conditions are
met.
An informed high-level official of the U.S. Government has
determined that the targeted individual poses an imminent
threat of violent attack against the United States. Two,
capture is infeasible, and the United States continues to
monitor whether capture becomes feasible. Three, the operation
would be conducted in a manner consistent with principles of
the laws of war.
Today's hearing will examine the Justice Department's white
paper and the constitutional issues surrounding the targeted
killing of Americans overseas. We have assembled an impressive
panel of experts to help the Committee analyze these important
issues.
Let me ask members of the staff to locate where that
construction work is going on and ask them to allow us to
conduct the hearing without the pain of drilling.
The targeted killing of Americans overseas has ignited a
debate about the breadth of a President's commander-in-chief
authority and the standard that should apply when targeting
Americans. Is the white paper a fair reading of the law? Under
what circumstances can the President decide to kill an American
citizen? Is there any due process of law that must be granted
before the commander-in-chief can kill an American? Does the
Administration's approach comport with the law? Should the
President be able to decide unilaterally to kill Americans?
The American people deserve to know and understand the
legal basis under which the Obama administration believes it
can kill U.S. citizens and under what circumstances. Obviously,
were the Justice Department memos made available or the Justice
Department here to testify today, Members of the Committee
could have a fuller understanding of the Administration's legal
rationale. However, today's hearing will provide an initial
public debate of the issue.
And now it is my pleasure to recognize the Ranking Member
of the Committee, the gentleman from Michigan, Mr. Conyers, for
his opening statement.
Mr. Conyers. Thank you, Chairman Goodlatte and Members of
the Committee and our distinguished witnesses present.
We are here examining a pressing matter, namely the use of
unmanned aerial vehicles, drones, to strike at suspected
terrorists abroad. First, let us make clear the House
Judiciary's jurisdiction over the matter.
These are serious constitutional considerations involved,
and that is what this Committee has been created for, as well
as civil rights questions, which are also involved in this
operation. Our Committee has direct oversight of the Department
of Justice, which has issued legal opinions, although
classified, that purport to establish the legal basis for the
use of lethal force against terrorist suspects.
Now in the course of this issue that has been raised,
numerous letters have been sent. And I want to point out that
our latest one that was joined in with myself, Chairman
Goodlatte, former Chairman Jim Sensenbrenner, Trent Franks,
Jerry Nadler, and Bobby Scott, who wrote again to the President
to renew our requests for all legal opinions related to drone
programs.
I am pleased that we reached a clear bipartisan consensus
on this issue. This Committee requires those documents to
fulfill its oversight responsibility. This isn't a witch hunt.
This is an inquiry, and we are all cleared for top secret. And
we will work together to convince the Administration to satisfy
our requests.
Let us examine a couple issues here. Targeted strikes
against United States citizens, targeted strikes generally, and
three, the odious so-called signature strikes. Now the need for
oversight is clear. I am not convinced, as the title of the
hearing before us suggests, by the Administration's legal
rationale for the targeted killing of any United States citizen
overseas.
The white paper describes a balancing test for the Fourth
Amendment, unlawful seizure of a person or a life, and the
Fifth Amendment, due process, which is tilted so far in favor
of Government interests that a potential target appears to have
little chance at meaningful due process when he is nominated
without his consent, of course, to the so-called kill list.
I also remain unconvinced about the targeted killing of
terrorist suspects who are non-citizens. Although the
Administration appears to rest its claim of authority on the
Authorization for Use of Military Force passed by the Congress
in 2001, it is not clear that Congress intended to sanction
lethal force against a loosely defined enemy in an indefinite
conflict with no borders or discernible end date.
And I am considerably troubled by the widely reported use
of so-called signature strikes, where suspects need only
display suspicious activity, but their identities are unknown
prior to the Government's use of lethal force against them.
That may be a CIA activity that should be sent over to the
Defense Department, by the way.
Today--and I rush to a conclusion--we want to accomplish
the following. We need to know more, and I hope that the way
that we conduct this hearing individually among our Members of
the Committee will convince the Administration that this is not
personal, nor political, and that all we are seeking is
information to which we are duly entitled. We have one
Committee on Intelligence that has gotten two reports out of a
dozen or more? That is not acceptable.
And with all due respect to an Administration that I
support, we are creating a resentment on a visceral level, as
General Stanley McChrystal has echoed, on a level that we can't
even begin to imagine. McChrystal was the architect of
counterinsurgency in Afghanistan.
``The resentment created by the American use of unmanned
strikes is much greater than the average American
appreciates.'' Well, I think we appreciate it, and I think that
we want to have this become the first of a number of hearings.
I conclude by saying I don't think that the Attorney
General of the United States can decline to come before this
Committee on a subject that is so clearly within our
jurisdiction, Mr. Chairman.
And I yield back my time.
Mr. Goodlatte. I thank the gentleman for that expression of
concern. I share it, and I will work with him and the other
Members on his side of the aisle, as well as the other Members
on our side of the aisle to see what we can do to bring about
better cooperation because we are seeking information that this
Committee is entitled to have.
We have a very distinguished panel. Without objection, all
the Members' opening statements will be made a part of the
record.
[The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Ranking Member, Committee
on the Judiciary
Thank you, Mr. Chairman. I very much appreciate that our Committee
is examining such a pressing matter: the use of unmanned aerial
vehicles, or ``drones,'' to strike at suspected terrorists abroad.
jurisdiction
Let me be clear: the House Judiciary Committee has direct
jurisdiction over this issue.
We are the Committee in the best position to assess the serious
constitutional and civil rights questions presented by the drone
program.
Our Committee also has direct oversight of the Department of
Justice, which has issued legal opinions, albeit classified, that
purport to establish the legal basis for the use of lethal force
against terrorist suspects.
Over the course of the 112th Congress, I, along with my colleagues
Representatives Jerry Nadler and Bobby Scott, wrote several letters to
Attorney General Eric Holder asking him to share those legal opinions
with the Committee.
These letter requests were made on January 18, 2012, May 21, 2012,
and December 4, 2012.
Although we did not receive the requested memoranda, the Justice
Department did provide us with a copy of the recently-publicized white
paper on the targeted killing of U.S. citizens.
Unfortunately, the white paper raises more questions than it
answers, and does little to address our concerns regarding the broader
use of lethal force against terrorist suspects.
On February 8, 2013, Chairman Goodlatte and I, together with
Representatives Jim Sensenbrenner, Trent Franks, Jerry Nadler, and
Bobby Scott, wrote to President Obama to renew our request for all
legal opinions related to the drone programs.
I am pleased that we have reached a clear, bipartisan consensus on
this issue: this Committee requires those documents to fulfill its
oversight responsibilities, and we will work together to convince the
Administration to satisfy our request.
concerns with the drone programs
The need for oversight is clear. I am not convinced, as the title
of the hearing may suggest, by the Administration's legal rationale for
the targeted killing of a United States citizen overseas.
The white paper describes a balancing test for Fourth and Fifth
Amendment rights titled so far in favor of government interests that a
potential target appears to have little chance at meaningful due
process when he is nominated to the so-called ``kill list.''
I also remain unconvinced about the targeted killing of terrorist
suspects who are non-citizens.
Although the Administration appears to rest its claim of authority
on the Authorization for Use of Military Force passed by Congress in
2001, it is not clear to me that Congress intended to sanction lethal
force against a loosely-defined enemy in an indefinite conflict with no
borders and no discernible end date.
And I remain deeply troubled by the widely reported use of so-
called ``signature strikes,'' where suspects display suspicious
activity but their identities are unknown prior to the government's use
of lethal force against them.
To date, the Administration has not even acknowledged that this
program exists--let alone provided this Committee with the information
it requires to examine the legality of the program.
global concerns
I am, of course, aware that drones offer a relatively precise means
for targeting our enemies. If used responsibly, they can limit civilian
casualties and do so without putting additional American troops in
danger.
But we must be mindful that the rest of the world is watching us.
In a recent interview, General Stanley McChrystal--the principal
architect of U.S. counterinsurgency strategy in Afghanistan--reminded
us that ``the resentment created by American use of unmanned strikes .
. . is much greater than the average American appreciates.''
He continued, ``They are hated on a visceral level, even by people
who have never seen one or seen the effects of one.''
No matter how far removed we are from the battlefield, we must
remember that it still feels like war when missiles strike.
And, the United States will not be the only nation with this
tactical capability for much longer.
Accordingly, the decisions we make--the process this Committee
finds necessary before our government may lawfully kill a suspected
terrorist, whether or not that suspect is a citizen--will set the
example for those who follow.
I thank the Chairman, and I yield back.
__________
[The prepared statement of Mr. Poe follows:]
Prepared Statement of the Honorable Ted Poe, a Representative in
Congress from the State of Texas, and Member, Committee on the
Judiciary
Today's hearing deals with one of the most important issues we face
here in Congress, the question of when and where our Constitutional
rights apply as Americans. We are here today because the Department of
Justice has so far repeatedly refused to provide Congress with the
legal and constitutional justifications that they use to authorize the
killing of a U.S. citizen who is abroad and allegedly a member of al-
Qaeda or an associated force. The House Judiciary committee has
requested this information, and it has been denied by the Department of
Justice. Congressman Gowdy and I have written two letters to the
Department of Justice requesting details on this justification and the
Department of Justice has not answered us. The first letter was sent
nearly three months ago. And, I would like to note, the Department of
Justice is not here to testify today.
In fact, we are left to try and make sense of a vague outline from
the DOJ white paper that was ``leaked'' to the media that lethal force
is authorized if:
1. An informed, high-level official of the U.S. government has
determined that the targeted individual poses an imminent
threat of violent attack against the United States;
2. Capture is infeasible, and the United States continues to
monitor whether capture becomes feasible;
3. The operation would be conducted in a manner consistent
with applicable law of war principles.
But these guidelines leave us with more questions than answers.
Who is a ``high level official''? Who is this
individual accountable to?
What intelligence do they rely on? Does there have to
be multiple sources? What if the intelligence is wrong?
If targeted assassinations are outlawed under
Executive Order 12333, how does a drone strike differ from a
targeted assassination?
And then, there is the question of whether or not this legal
interpretation could involve suspected terrorists in the United States.
So far, the Administration's response has been they have ``no plans''
for the use of targeted drone strikes within the United States but that
seems to at least leave open the possibility.
What about suspects in Mexico? France? Or other countries we are
allies with? Is the Government permitted to target a U.S. Citizen
anywhere in the world? Under this justification, does it mean that the
Constitution no longer applies when a ``high ranking official''
determines that somebody is a terrorist? Should this ``high ranking
official'' act as Judge, Jury and Executioner all at once? Don't get me
wrong, if an American citizen decides to join al-Qaeda and takes arms
up against the United States, they deserve whatever is coming to them,
however shouldn't we have some sort of judicial review to look at the
evidence to make sure we have the facts straight? After all,
intelligence is sometimes wrong. That is the point of judicial review.
Shouldn't we be 100% sure that this individual actually did join al-
Qaeda? Not every case is going to be as clear as the Anwar al-Aulaqi
case. Does it make sense to have a higher legal standard in order to
listen to American's phone calls abroad then to target and kill that
individual? (FISA court) These are all questions that Congress needs to
weigh in on and that's why the Department of Justice needs to give us
the information we have requested.
__________
Mr. Goodlatte. And we will turn now to our panel. We have a
very distinguished panel joining us today, and I will begin by
introducing the witnesses.
Our first witness is Mr. John Bellinger, a partner at
Arnold & Porter LLP, a law firm here in Washington, D.C., where
he advises sovereign governments and U.S. and foreign companies
on a variety of international law and U.S. national security
law issues.
Mr. Bellinger is also an Adjunct Senior Fellow in
International and National Security Law at the Council on
Foreign Relations, where he directs the Program on
International Justice. He served as the Legal Adviser for the
U.S. Department of State under Secretary of State, Condoleeza
Rice, from April 2005 to January 2009, earning the Secretary of
State's Distinguished Service Award.
Mr. Bellinger received his Bachelor's degree from the
Woodrow Wilson School of Public and International Affairs at
Princeton University, his J.D. from Harvard Law, and most
recently, a Master's degree in Foreign Affairs from the
University of Virginia. We are fortunate to have him and his
expertise with us today.
Our second witness today is Professor Robert Chesney, the
Charles I. Francis Professor in Law and Associate Dean for
Academic Affairs at the University of Texas School of Law.
Professor Chesney specializes in a broad range of issues
regarding U.S. national security law, such as military
detention, the role of the judiciary in national security
affairs, and terrorism-related prosecutions. He is a
nonresident Senior Fellow of the Brookings Institution, as well
as a team member of the Council on Foreign Relations.
Previously, he served on President Obama's Detention Policy
Task Force.
Mr. Chesney earned his Bachelor's degree in Political
Science and Psychology from Texas Christian University and
subsequently graduated Magna Cum Laude from Harvard Law School.
We welcome his experience and expertise.
The third member of our witness panel is Mr. Benjamin
Wittes, a Senior Fellow in Governance Studies at the Brookings
Institution and co-director of the Harvard Law School Brookings
Project on Law and Security. He is the author of ``Law and the
Long War: The Future of Justice in the Age of Terror,''
published in June 2008, and the editor of the 2009 Brookings
book, ``Legislating the War on Terror: An Agenda for Reform.''
Mr. Wittes co-founded and is editor-in-chief of the Lawfare
Blog, a nonideological discussion of ``Hard National Security
Choices.'' Between 1997 and 2006, he served as an editorial
writer for The Washington Post, specializing in legal affairs.
Mr. Wittes is also an alumnus of Oberlin College. We thank him
for serving as a witness today and look forward to his insight
into this complex topic.
Our final witness is Mr. Stephen Vladeck, a law professor
from American University Washington College of Law, teaching
courses in Constitutional Law, Federal Courts, International
Criminal Law, and National Security Law, to name just a few. He
is also a Fellow at the Center for National Security at the
Fordham University School of Law in New York City. Mr. Vladeck
has co-authored multiple legal textbooks and has served as a
Law Clerk of appellate judges in both Florida and California.
He earned his Bachelor's degree in History and Mathematics
from Amherst College and his J.D. from Yale, where he served as
the Executive Editor of the Yale Law Journal. We are pleased to
have him with us today.
We thank all of you for joining us. And Mr. Bellinger, we
will started with you. Each witness has written statements that
will be made a part of the record in their entirety. I ask that
each witness summarize his or her testimony in 5 minutes or
less.
To help you stay within that time, there is a timing light
on your table. When the light switches from green to yellow,
you will have 1 minute to conclude your testimony. When the
light turns red, it signals that the witness' 5 minutes have
expired.
Mr. Bellinger, welcome.
TESTIMONY OF JOHN B. BELLINGER, III, PARTNER,
ARNOLD & PORTER LLP
Mr. Bellinger. There we go. Thanks very much, Mr. Chairman
and Members of the Committee, for coming for this important
hearing today.
I dealt, as you heard, with many of the legal issues that
are the subject of today's hearing when I served as the legal
adviser for the National Security Council in the White House in
the first term of the Bush administration. And then I was the
legal adviser for the State Department in the second term of
the Bush administration. I was in the White House situation
room on 9/11 and spent all 8 years of my time dealing with many
of these same issues.
Now both the Bush and the Obama administrations have
concluded that the targeted killing of al-Qaeda leaders is
lawful under both U.S. and international law under certain
circumstances. Let me start with U.S. law.
The President's legal authority derives from the
Authorization to Use Military Force Act of September 18, 2001,
the AUMF, and also from the U.S. Constitution. The problem is
the AUMF is now nearly 12 years old, and Congress should update
it. It does not provide sufficient legislative authority for
our military and intelligence personnel to conduct the
operations necessary to defend against the terrorist threats
that we face a decade after 9/11. And it also contains
inadequate protections for those targeted or detained,
including U.S. citizens.
Of course, in addition to the statutory authority granted
by Congress, the President also has broad authority under the
Constitution to take necessary actions to defend the United
States against terrorist threats.
The targeted killing of American citizens raises additional
legal issues because U.S. citizens have certain constitutional
rights under the Fourth and Fifth Amendments of the
Constitution even when they are outside the United States. But
the extent of those rights is not clear. No U.S. court has
previously opined on the issue of what amount of process is due
to an American outside the United States before being targeted
by his own government.
Now I agree with the principal conclusions of the Justice
Department white paper that reportedly summarizes the laws
applicable to killing an American citizen who is a senior
operational al-Qaeda leader. In particular, I agree that an
American citizen who is a senior al-Qaeda leader outside the
United States does enjoy constitutional right to due process.
But I also agree that it is sufficient due process for a senior
informed Government official to conclude that the individual
poses an imminent threat of violence against the United States
before targeting the individual with lethal force.
I do not believe that prior judicial review is currently
required or should it be required before the U.S. Government
uses lethal force against an American citizen who is a senior
al-Qaeda leader outside the United States. Now relevant to this
Committee, the Congress may still want to specify the
conditions and certain processes for targeting an American, and
this Committee may want to consider legislation on this issue.
But these processes should reside inside the executive branch
with appropriate notice to Congress.
Now both the Bush and Obama administrations have also
concluded that international law permits the United States to
use force through drone strikes or other means to kill al-Qaeda
leaders in other countries in certain circumstances, and I want
to emphasize that it is important for the United States to
follow international legal rules rather than use force
arbitrarily.
The executive branch and Congress need to be aware that
what is sauce for the goose is sauce for the gander. Unless the
U.S. Government specifies clear international rules with which
it is complying, the U.S. will lack credibility if it
criticizes other countries, such as Russia or China, who may
use drones to conduct targeted killings with which the U.S.
disagrees.
Now other countries, including many of our close allies,
are growing increasingly alarmed by the large number of U.S.
drone strikes, which reportedly have killed many civilians. The
U.S. has a strong interest in demonstrating to our allies that
its drone strikes are consistent with international law.
Because if allies conclude that drone strikes violate
international law or, worse, are war crimes, they are likely to
stop sharing targeting information and may cease other forms of
counterterrorism cooperation.
So if the Obama administration wants to avoid losing the
intelligence support of its allies, Administration officials
need to work harder to explain and defend the legality of this
program. The speeches given by Administration officials have
been very valuable, but the Administration needs to do more to
address growing international opposition to its use of drones.
And the Administration needs to be more transparent about who
it is targeting and the procedures it applies to ensure that
its targets are appropriate and to limit collateral damage to
civilians.
I think the Obama administration should be able to release
after the fact the names and background information of at least
some of the people it has targeted. The release of more
information should help address the concerns that U.S. targets
individuals who do not pose significant threats.
So, in closing, I want to commend this Committee for
holding this hearing, and I want to end with a plea for more
bipartisanship on counterterrorism issues. Republicans and
Democrats will not always agree on the same approach to dealing
with terrorism, but these issues should not be used to divide
the American people. We all face a common threat from
terrorism, and we need to work harder to find bipartisan
solutions to these difficult problems.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Bellinger follows:]
__________
Mr. Goodlatte. Thank you, Mr. Bellinger.
Mr. Chesney, welcome.
TESTIMONY OF ROBERT CHESNEY, CHARLES I. FRANCIS PROFESSOR IN
LAW, ASSOCIATE DEAN FOR ACADEMIC AFFAIRS, UNIVERSITY OF TEXAS
SCHOOL OF LAW
Mr. Chesney. Thank you, Mr. Chairman. Thank you,
distinguished Members of the Committee, for the opportunity to
be here to testify today.
Mr. Goodlatte. Pull it close.
Mr. Chesney. Thank you.
Let me come straight to the point. The Constitution does
not require judicial process in the narrow circumstances at
issue here today for the reasons Mr. Bellinger just stated and
stated in the white paper. However, I believe that a limited
and carefully calibrated judicial role would be permissible as
a constitutional matter and desirable as a matter of policy. So
how might this be the case?
You need to bear in mind that there are two very distinct
scenarios that arise when the Government uses lethal force in a
targeted manner. The classic scenario that comes readily to
mind for most of us when we talk about armed conflict is that
of a soldier in the field who encounters a situation that
requires an instant judgment as to whether someone is an enemy,
whether a shot should be taken.
Judicial involvement at that stage would, of course, be
grossly impractical. It would be contrary to tradition. I think
that is relatively common ground. But that is not the end of
the story.
We are speaking this morning exclusively of a situation in
which the Government is intentionally targeting a specifically
identified person. Unlike the classic armed conflict scenario I
just described, the scenario actually at issue here is a two-
stage process with very different questions at issue and very
different exigencies at different points in time.
Now, for better or worse, there have been a flood of leaks
that give us a fair sense of how this process actually unfolds
currently. At stage one, the question is whether the available
intelligence suffices to establish that the nominated
individual is notionally within the scope of the Government's
asserted targeting authority. If so, that opens the door to the
possible use of force later on, should that person be located.
Stage two arrives only later, if and when the target
actually is located. Now at that point in time, sensitive
questions do arise as to whether, for example, the person that
is being observed is, in fact, that nominated target and then
whether the circumstances would allow for a particular attack
to be lawful and desirable. My point is that stage two is akin
to the classic time-sensitive scenario I first described, but
stage one is quite different.
Indeed, it is no accident that based on the public
reporting of what actually takes place within the Obama
administration at stage one, it in many ways resembles a
judicial process already. Dossiers of information are
assembled. They are put before a group for debate and
discussion. Multiple parties weigh in in debate what, if
anything, the intelligence suffices to prove. And debates take
place regarding the notional legal boundaries of the
Government's targeting authority.
The point is judicial involvement at stage one would be
relatively much less intrusive, much less unconventional than
it would be at stage two. And while I do not think it is
possible to say that the Fifth Amendment due process clause
clearly requires adoption of a system for review of these stage
one issues, and while I rush to add that, of course, there is
no current way to get that review--not unless and until
Congress acts--I do think that the due process interests of the
individuals involved, who, after all, may not actually be
senior operational al-Qaeda leaders after all, it suffices to
counterbalance the competing Article II concerns that a
proposal for judicial review at stage one would otherwise raise
or would raise.
Now let me clarify precisely what it is I think a judge
could properly be asked to do in this so-called stage one
review. There are really two elements to this. One task would
be to confirm or clarify the law with respect to notionally
which U.S. persons could be targeted. This could result in
affirmation of the white paper's position and the Attorney
General's prior speech on this subject. Perhaps it would result
in a narrower view or a broader view, but a judge could make
that determination.
Whatever the result of that substantive legal inquiry, the
court's core task, of course, would be to determine whether the
information that has been put forward to suggest that a
particular American is within the scope of that authority
actually is sufficient to that task. Now if the category is
defined simply in terms of membership in the enemy force, which
is effectively what goes on at the Guantanamo habeas
proceedings currently, the court would be able to consider that
question. It is the sort of question courts have been grappling
with in the habeas process for the past 4 years.
If, instead, the test is something along the lines of the
white paper test, it would be more complicated. Certainly, the
court at that stage could consider the person's organizational
links, position in the organization.
As to imminence, which, of course, is a central part of the
white paper test, if you met a strict temporal definition of
imminence, which is now what the white paper is talking about,
that sounds like a stage two determination that can only be
decided at a time exigent moment. But of course, the white
paper describes a form of imminence that is probably better
thought of as constant and continuing organizational commitment
to attack. That could be assessed at stage one.
Feasibility of capture, in contrast, is a stage two issue,
not something that judges could appropriately intervene with or
review at stage one.
I am out of time. So I will close simply by quickly noting
that there is an objection that comes from a different
direction to this proposal, and that would be that the Article
III jurisdiction of the courts could not extend to a situation
like this, which would be an ex parte proceeding. It would be a
significant issue. It is not obvious that the courts have the
power to do this.
However, I think that the analogy to the FISA system
actually is a good one. I know that we will hear more about
this in a moment from my colleague Professor Vladeck. Suffice
to say that in the FISA context, there is very little actual
prospect of adversarial testing of the FISA orders that are
issued. In the end, it rarely happens, and when it does, it is
always done on an ex parte basis anyways.
Thanks for your patience, and I look forward to answering
your questions.
[The prepared statement of Mr. Chesney follows:]
__________
Mr. Goodlatte. Thank you, Mr. Chesney.
Mr. Wittes, thank you very much.
TESTIMONY OF BENJAMIN WITTES, SENIOR FELLOW,
THE BROOKINGS INSTITUTION
Mr. Wittes. Thank you, Mr. Chairman, Members of the
Committee, for inviting me to testify on the question of when
the United States may lawfully target alleged American
terrorists overseas.
I want to explain and defend the legal rationale underlying
the Administration's lethal targeting of a U.S. citizen in the
narrow circumstances of a person who is abroad and believed to
be a senior operational leader of al-Qaeda or its associated
forces. The ability to kill one of its own citizens is one of
the most awesome and terrifying powers a people can vest in its
government, and the power to do this without judicial check is
certainly anomalous in a society that provides for judicial
review of countless lesser exertions of government power.
As Federal District Judge John D. Bates, who presided over
the al-Awlaki case, wrote, ``How is it that judicial approval
is required when the United States decides to target a U.S.
citizen overseas for electronic surveillance, but that
according to the Government, judicial scrutiny is prohibited
when the United States decides to target a U.S. citizen
overseas for death?''
Yet there is something equally terrifying, I would suggest
more terrifying, about a government unwilling, as a consequence
of its own legal views, to protect its people from ongoing
threats of attack from its citizens overseas. In dealing with
major al-Qaeda figures overseas who hold American citizenship
therefore, the Obama administration has, therefore, confronted
a slippery slope with not one, but two distinct bottoms.
Down one side lies a Government empowered to do terrible
things without sufficient legal justification or oversight.
Down the other side lies a Government powerless to confront
very real threats to the safety and lives of its citizens while
terrorist figures operate with impunity from sanctuaries in
ungoverned spaces. It is not enough to avoid sliding down one
of these slippery slopes. U.S. policy must avoid both.
With that as background, let us consider for a moment the
targeting powers that the Obama administration is not claiming
with respect to Americans overseas who affiliate themselves
with the enemy. It is not claiming the authority to target any
such American citizen, only an American citizen who is a senior
operational leader of al-Qaeda or one of its co-belligerent
forces. It is not claiming the authority to target even such a
senior operational terrorist if his capture is a feasible
alternative.
It is not claiming the authority to target an American
citizen who poses no imminent threat to American lives, and it
is not claiming the authority to act without compliance with
the laws of war. Given this rather restrictive posture, it is
not surprising there is only one reported case of U.S. forces
actively targeting a specific American citizen with lethal
force.
The Administration's view of this matter has four
subsidiary components, each of them, in my view, clearly
correct. First, the United States is in a state of armed
conflict with al-Qaeda, the Taliban, and its associated forces.
Second, in this armed conflict--as, indeed, in any armed
conflict--the United States is lawfully entitled to target the
enemy with lethal force. Third, there exists no general
immunity from targeting for U.S. citizens who sign up to wage
war against their own country. And fourth, whatever the
Constitution's due process guarantees may require before
targeting a U.S. citizen, these requirements are more than
satisfied by a rigorous judgment that a person like Anwar al-
Awlaki meets the Administration's narrow test for targeting.
To understand why this position must be correct, consider a
domestic hostage situation. In such a situation, even law
enforcement will use targeted killings, and it will do so
without judicial preapproval when the threat to the lives of
the hostages is adequately serious. Nobody takes the position
that such actions constitute unlawful extrajudicial killings. I
submit that the case that truly meets the Administration's
legal test, like Anwar al-Awlaki, is not profoundly different
from this hostage situation.
Now a mounting chorus of critics has insisted that judicial
review must be a feature of the legal framework that authorizes
the targeting of American nationals. Whatever the merits of
proposals to create judicial review mechanisms, and this is an
extremely difficult question, one point is very clear. Current
law simply does not provide for prospective judicial
involvement in targeting decisions.
It is, therefore, hard to fault Attorney General Holder for
having failed to bring the Anwar al-Awlaki case for prospective
review before a court that does not exist.
In summary, the Obama administration has taken a measured
and serious position concerning the targeting of Americans
overseas, one that reserves the right to target in the most
extreme cases while leaving open the question of the minimum
criteria for targeting to be lawful in less dire circumstances.
It is a position that is neither radical, nor surprising, and
it ought not raise concerns that the Administration is claiming
undue presidential power.
Thank you for this opportunity to share my views on this
important subject. I look forward to your questions.
[The prepared statement of Mr. Wittes follows:]
__________
Mr. Goodlatte. Thank you, Mr. Wittes.
Mr. Vladeck, welcome.
TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, ASSOCIATE
DEAN FOR SCHOLARSHIP, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF
LAW
Mr. Vladeck. Thank you, Mr. Chairman, Members of the
Committee. It is a pleasure to be back before you again.
I want to start from where Mr. Wittes left off, which is
that I do think, although we might disagree about the actual
circumstances, we would all agree that there are some
circumstances where the Government is allowed to use lethal
force, even against its own citizens. That is not to say that
this is a good thing. It is not to say that it is something we
should be happy or proud about. But it is something, I think,
that is an important starting point for this conversation.
So, in that regard, the question really isn't whether the
Government has the power to use this kind of force, it is when.
And that is why I think so much of the statements you have
heard already today, so much of the focus among commentators,
has been on this judicial review question.
Not as a sideshow, not because judicial review is somehow a
proxy for the larger conversation, but because the real concern
is, are these operations being carried out in a manner that
actually passes legal scrutiny? Put another way, how can we be
sure, given the pervasive secrecy that surrounds these
operations, that the circumstances, the criteria, whatever the
law that we believe to exist is, has actually been satisfied in
an individual case?
And indeed, in this regard, Mr. Chairman, the white paper
is curiously silent. It suggests that ex ante judicial review
would not be really workable for reasons that my friend and
colleague Professor Chesney has alluded to. And I actually
don't disagree that there are concerns that would arise from ex
ante review.
But what I would like to do in my remarks today and what I
do in more detail in my written testimony is explain how
Congress could, in fact, provide a far clearer, far less
problematic remedy that would allow these issues, these
questions to be resolved by judges by creating a cause of
action for damages after the fact. Indeed, to my mind, the only
answer to the hard questions raised by targeted killings are
for Congress to allow courts to intervene, not beforehand, but
afterwards, just as courts do when our law enforcement officers
use lethal force in those exceptional circumstances where they
feel compelled to do so.
So let me briefly explain how this could work using the
various examples that this Committee is well familiar with to
illuminate. First, with regard to creating a cause of action,
as this Committee knows, when Congress enacted the Foreign
Intelligence Surveillance Act in 1978, one of the provisions it
included was an express cause of action. Even for a secret
surveillance program, even where most of these determinations
are made behind closed doors and ex parte, Section 1810 of
Title 50 provides a cause of action for damages. It provides
even for attorneys fees, although I wouldn't get that excited
at that point in the proposal.
And so, we have this model in FISA for Congress providing
retrospective damages even for presumably secret governmental
operations.
There would still be other potential procedural obstacles
that would get in the way. So, for example, the state secrets
privilege that the Obama administration has followed its
predecessors in routinely invoking in these kinds of cases. But
as this Committee knows, there have been various proposals
floated in Congress in the last 4 or 5 years to curtail the
state secrets privilege. For example, the State Secrets
Protection Act that was proposed in 2009.
Whether you follow the model of the State Secrets
Protection Act or not, it certainly would be easy for Congress
by statute to provide procedures pursuant to which these issues
could be resolved while protecting governmental secrecy. One
could model those procedures after the Classified Information
Procedures Act, which this Congress passed to apply to criminal
prosecutions involving classified information.
One could also look, Mr. Chairman, to the Guantanamo habeas
cases where the courts have actually fashioned an ad hoc form
of the Classified Information Procedures Act to allow for those
disputes to be resolved even with classified evidence. And the
model for that is not to allow the individual litigants to
always see the evidence, but to have security-cleared counsel
who, so far as we know, have to date not disclosed a single
item of classified information as part of the Guantanamo
hearings.
You also have questions about official or sovereign
immunity. But Congress in 1988 in the Westfall Act provided a
way around that for certain tort claims against the Federal
Government, whereby the statute Congress immunizes Federal
officers and substitutes the Federal Government as the
defendant any time an operation that falls within the scope of
the cause of the action is carried out within the scope of that
officer's employment. This could certainly be followed here.
Now this begs the harder question, what exactly would
courts be reviewing on the merits? And I think, Mr. Chairman,
we could have four or five hearings at the least to answer that
question. Let me just start from the proposition, though, that
this is a question courts are not completely incompetent at
handling.
In the context of law enforcement operations, courts
routinely look backwards after a lethal use of force to decide
whether the officer reasonably feared for his life or for the
life of third persons. Courts routinely look at the
circumstances through hindsight, even though there are concerns
about hindsight bias.
And so, I think if we could reach some consensus, Mr.
Chairman, on how to actually resolve these claims on what the
law should be going forward, it would not be that hard to
empower courts with the benefit of hindsight to entertain these
kinds of claims.
Now in his concurrence in the famous decision in the Steel
Seizure case, Justice Frankfurter suggested that the accretion
of dangerous power does not come in a day. It does come,
however, slowly from the generative force of unchecked
disregard of the restrictions that fence in even the most
disinterested assertion of authority.
It seems to me, Mr. Chairman, that targeted killing
operations by the executive branch present the legislature with
two realistic choices. Congress could accept with minimal
scrutiny or oversight the executive branch's claims that these
operations are, in fact, carried out lawfully and with every
relevant procedural safeguard to maximize their accuracy and,
thereby, open the door to the unchecked disregard of which
Justice Frankfurter warned.
Or Congress could require the Government to defend these
assertions in individual cases before a neutral magistrate
invested with the independence guaranteed by the Constitution's
salary and tenure protections. So long as the Government's
interest in secrecy are adequately protected in such
proceedings and so long as these operations really are
consistent with the Constitution and laws of the United States,
what does the Government have to hide?
Now, in closing, Mr. Chairman, I just want to make one last
point. As Mr. Wittes suggested, there has only been one
reported case of an operation that specifically targeted a U.S.
citizen. If the reports are to be believed, there are only
three U.S. citizens who have, in fact, been killed in these
operations.
But if one listens to Senator Graham, who, given his role
on the Intelligence Committee, would know, there are as many as
4,700 casualties, 4,700 people who have been killed by American
drone strikes. I am sure many of those strikes were legal. It
is possible most of those strikes were legal. But I think it is
important to keep in mind that as we talk about drones and
accountability for the Government, we are not just talking
about Anwar al-Awlaki.
Thank you, Mr. Chairman. I look forward to your questions.
[The prepared statement of Mr. Vladeck follows:]
__________
Mr. Goodlatte. Thank you, Mr. Vladeck.
Thank you all for very good testimony. I will begin the
questioning with you, Mr. Bellinger.
The Administration's white paper tries to establish that
where an American citizen who is a ``senior operational leader
of an al-Qaeda--or an al-Qaeda leader or an associate force of
al-Qaeda poses an imminent threat, the capture is--and capture
is not feasible,'' the U.S. can target and kill him. According
to the white paper, imminent threat and the feasibility of
capture are not well defined.
Do you see any problems with the lack of specifics in these
definitions?
Mr. Bellinger. Well, thanks, Mr. Chairman.
Of course, the white paper is a summary, a 15-page summary
of what apparently is a much longer legal opinion. And as you
have explained, most Members of Congress have not seen the
entire legal opinion.
Having been both an executive branch lawyer and I have also
been counsel to a Senate Committee, I understand the state of
play. I do think the Administration, while perhaps not
providing the very opinion that was provided to the President,
needs to be as forthcoming as possible on these very issues
about imminence. I agree with the point in the white paper that
imminence cannot mean that a terrorist is about to push the
button tomorrow, and that is the only time that you can target
him.
When we are dealing with terrorism, when we are dealing
with nuclear weapons programs, there has to be a longer lead
time. The Administration has tried to explain that, both in the
white paper and in Attorney General Holder's speech, but that
is a very controversial concept that I think has been troubling
both to Americans and for me, as a former State Department
official, has been extremely troubling to our allies.
Well, at what point is the U.S. saying that they are going
to target someone if this concept of imminence is really
redefined to be a very, very broad concept? So----
Mr. Goodlatte. Well, let me take it a step further. It is
not just killing, but it is also other actions taken by the
Government. And the Congress has already required that the
military get court approval before targeting an American
citizen for surveillance.
Mr. Bellinger. Right.
Mr. Goodlatte. Which has less consequences than killing
them, even in a foreign country. So why shouldn't that
requirement extend to a targeted killing?
Mr. Bellinger. Well, you know, this is, in fact, one of the
great ironies at the broad conceptual level. Why is it that to
conduct electronic surveillance of an American, the executive
branch has to go to a court, but to actually kill an American,
they don't?
The reason is about 30 years ago or so, Congress got
concerned about electronic surveillance of Americans and said
we want to set very specific parameters before the executive
branch does that. Congress could do that in this case, and I
think that is something this Committee ought to think about.
Now, to a certain extent, I do believe, as you have heard
from my colleagues, that this may be a solution in search of a
problem. The United States is not out regularly killing
Americans. That said----
Mr. Goodlatte. No, but it is good for the Congress to check
and make sure that they are not, too, right?
Mr. Bellinger. That is right. And so, even if only one
American has been killed, if Congress, on behalf of the
American people, is concerned about the Government targeting
people, I think Congress could reasonably pass a statute that
says not to require judicial review--because I really think
that is too difficult, particularly in a war, in an armed
conflict--but to specify the circumstances that the executive
branch has to satisfy before they target an American and then
to require some notice in reporting back to Congress. That is
the check and balance.
Mr. Goodlatte. Since my time is limited, let me go on to
Mr. Chesney and Mr. Wittes. First of all, Mr. Chesney, does the
white paper provide enough information about why the
Administration believes it has authority to kill U.S. citizens
abroad?
Again, I am not talking about Anwar al-Awlaki. I think the
evidence is pretty solid he is a bad guy, and he got the end he
deserved. I would note for Mr. Wittes' analogy to hostage
taking, that you have collateral damage that you have got to
pay attention to there. And in this case, his 16-year-old son,
also a United States citizen and not a senior operational
leader of al-Qaeda, was killed in the same attack.
So I would like you to tell how we can refine making that
distinction and protect the rights of law-abiding U.S.
citizens. I am not saying his son is or is not. But I think
that is a legitimate question when we know that he also faced
the same demise.
So, Mr. Chesney?
Mr. Chesney. Mr. Chairman, as Mr. Bellinger said, it is
quite possible that in some of the documents that the Committee
has not yet been able to see and that certainly we haven't
seen, that there is a much more expansive explanation as to the
foundations of affirmative authority to target that the
Administration is claiming. That said, there is a fair amount
of detail even in the white paper. The core claim, of course,
is the 2001 Authorization for Use of Military Force is
pertinent here. Al-Qaeda membership is woven into the
conditions that are specified both in Attorney General Holder's
speech and in the white paper.
The more interesting question, though, of course, is what
about threats that are of similar magnitude, similar threats to
American lives that don't necessarily arise with an al-Qaeda
nexus? As Mr. Bellinger pointed out in his opening remarks, a
dozen years removed from the 2001 AUMF, the nature of the
threat environment the United States faces has evolved
considerably, and it is increasingly the case that it is not
enough simply to say, well, the threat is al-Qaeda or to
gesture in the direction of associated forces. At a certain
point, we have to ask whether there's a need for a clearer
statement from Congress as to what range of situations the
Administration ought to be in bringing to bear the armed
conflict model.
Now that said, the white paper is also careful to identify
a distinct head of authority, and that is Article II authority,
indeed, the duty of the President to defend the Nation when
faced with threats to American lives.
Mr. Goodlatte. Right. Let me interrupt you because I do--my
time has expired, and I do want to get Mr. Wittes with an
opportunity to respond to the same question.
Mr. Wittes. So I just want to respond briefly to your point
about the hostage situation. Number one, you know, collateral
death is a distinct possibility in a hostage situation, and it
is one of the background principles I think that makes the
analogy so precise is the possibility that you may actually
accidentally kill some of the hostages.
Number two, I think the collateral deaths of U.S.----
Mr. Goodlatte. Right. But that is also a case where the
imminence of the danger to those hostages is very, very real.
Mr. Wittes. Correct. I mean, you have the possibility of
imminent danger to the hostages----
Mr. Goodlatte. You don't necessarily have that with
somebody driving around Yemen in an automobile or however this
particular drone attack was taking place.
Mr. Wittes. Right. But you do have the possibility of
imminent death to people on the airplanes that he is allegedly
putting Umar Farouk Abdulmutallab on.
Mr. Goodlatte. Look, I am not defending Mr. al-Awlaki in
any way, shape, or form. I want to know what we can do to
protect U.S. citizens from having that occur.
Mr. Wittes. Right.
Mr. Goodlatte. Mr. Vladeck? Go ahead. Go ahead.
Mr. Wittes. Can I just respond to that? I mean, I think the
answer to that has to be rigorous procedures. Now whether those
rigorous procedures are--you want rigorous procedures both on
the side of making sure the target is the person who you think
he is and making sure that you, in fact, have identified
rigorously the person who, in fact, is a lawful target.
And you also want rigorous procedures that will in a
fashion consistent with the laws of war minimize collateral
damage----
Mr. Goodlatte. Okay. I am going to interrupt because I want
him to say a few words, and then I want to turn to my
colleague. And I have exceeded my time.
Mr. Vladeck. Mr. Chairman, very briefly, the only thing I
would add to what has already been said by my colleagues is I
think it is very important, especially for the purposes of this
conversation, to keep in mind that we are dealing with
different scenarios and different categories of cases. And so,
the answer to your question I believe is going to change
depending on whether the justification for the strike is
classic self-defense, where there is, in fact, a clear imminent
threat to U.S. persons or U.S. interests.
Mr. Goodlatte. Hostage situation.
Mr. Vladeck. Hostage situation. Or a targeted killing
operation that takes place not as part of self-defense, but as
part of the broader non-international armed conflict between
the United States and al-Qaeda in those parts of the world
where there are active combat operations.
And respectfully, sir, I do believe we are going to have
very different answers to your questions based on which
category we are talking about.
Mr. Goodlatte. Sure. The Chair now recognizes the Ranking
Member of the Constitution Subcommittee and the gentleman from
New York, Mr. Nadler, for 5 minutes.
Mr. Nadler. I thank the Chairman.
My first question I must give credit to David Cole and the
March 4th issue of the Nation. I am just going to read the
question he posed.
Imagine that Russian President Vladimir Putin had used
remote controlled drones armed with missiles to kill thousands
of ``enemies'' throughout Asia and Eastern Europe. Imagine
further that Putin refused to acknowledge any of the killings
and simply asserted in general terms that he had the right to
kill anyone he secretly determined was a leader of the Chechen
rebels or associated forces, even if they posed no immediate
threat of attack on Russia.
How would the State Department treat such a practice in its
annual reports on human rights compliance? Anyone? Maybe we can
start with Mr. Bellinger?
Mr. Bellinger. Thank you, Mr. Nadler.
In fact, as I alluded to in my opening remarks and at
greater length went into my written remarks, I mean, this is a
real problem. It could happen this year where the poor State
Department spokesman is going to have to stand up after Russia
or China has used a drone against a dissident in the next
country, and the State Department will have to explain why that
was a bad drone strike in comparison to the United States that,
of course, only conducts good and lawful drone strikes.
And so, that is extremely important for our Government,
both Congress, but primarily the executive branch, to lay down
as precisely clear rules for the use of drones----
Mr. Nadler. That is fine, but isn't it the case that if
Russia or China or someone were doing what Mr. Cole posits,
that we would condemn that out of hand? That we wouldn't say,
well, you know, this drone strike was okay and that one wasn't?
That we would say----
Mr. Bellinger. If Russia or China were being attacked by a
terrorist group that was indisputably posing imminent----
Mr. Nadler. Well, the Chechens attacked them at one point.
Mr. Bellinger. And if Chechens were in another country
posing imminent threats to Russia, and the country that they
were in was unwilling or unable to prevent that threat, I think
we would have to acknowledge Russia's right to defend itself.
Mr. Nadler. Okay. Let me continue. First of all, one
comment on something Mr. Bellinger said. He said we need due
process, but not judicial process. I don't understand, and I am
not asking a question, I am just saying. I don't understand how
a unilateral determination by an executive branch official
without any judicial involvement can be considered due process
in any form.
Let me ask Mr. Wittes the following question. You said and
the white paper says that we can attack a senior operational
terrorist posing an imminent threat consistent with the laws of
war. My question is the following.
I don't understand why we need a senior operational
terrorist, why he can't be just an ordinary terrorist. I don't
understand why he has to be posing an imminent threat. I think
the analysis is completely different.
Either this person is an enemy combatant, or he is not. If
he is not an enemy combatant, he is subject to normal criminal
law, and we ought to have normal due process and take him to
court and so forth. If he is an enemy combatant, he doesn't
need due process.
The question is how do you determine whether he is an enemy
combatant, and who determines whether he is an enemy combatant?
Whether he is senior or not, I don't care, frankly, from this
point of view. But under the laws of war, if he is an enemy
combatant, he is a legitimate target.
But who can determine that under what standards, and what
precedents do we have, and on what grounds, and how can the
executive determine that without any kind of other
determination? Let me ask Mr. Wittes and Mr. Vladeck.
Mr. Wittes. Well, I would just say, as a matter of law, you
have just taken a position that is far more permissive with
respect to targeting than the Obama administration's position.
Mr. Nadler. No, because I have said it has got to be--you
have got to determine properly he is an enemy combatant.
Mr. Wittes. I understand. You have raised--you have
suggested a narrower process to determine a broader category,
right? The Obama administration has taken the view that it
generally will not specifically or that it does not assert
generally the right to target any U.S. national overseas who
may fit in a law of war category of belligerency. It will
target people only when they are an imminent threat and a
senior operational leader whose capture is unfeasible.
So you are taking a view that is potentially much more
permissive and inclusive of more possible targets, but with a
concern about the lack of process on the judicial side. I would
just say--I mean, I think it is a very legitimate question what
processes this body wants to impose for making those
determinations.
My only point is that there is nothing particularly extreme
about the substantive position, there is nothing extreme at all
about the substantive position the Administration has taken
about whom it may target. And under current law, which is the
law under which it confronted the Anwar al-Awlaki case, which
is really the case that gave rise to these memos in the first
place, there is no basis for judicial process at all. There is
no forum in which to take these questions.
Mr. Vladeck. Congressman, all I would say is I share your
concerns about the view that due process is not a requirement
of judicial process. I was surprised to hear the Attorney
General say that last year in his speech at Northwestern.
The only thing I think that it is worth bearing in mind is
due process is not necessarily a requirement of pre-deprivation
judicial process.
Mr. Nadler. Of what?
Mr. Vladeck. Of pre-deprivation, right? In other words,
there are circumstances where the Supreme Court has said the
Government is allowed to act, and then we will review after the
fact whether they acted with sufficient procedural safeguards.
And so, I share your view. I think the point is that that
is not necessarily--the cash-out of your view is not that there
should be pre-deprivation judicial process, but rather that
there is a requirement that, at some point, some neutral
magistrate is reviewing whether the Government's decision was
made with adequate safeguards.
Mr. Nadler. Could I just ask Mr. Vladeck to comment on the
question that I posed? Under laws generally, if someone is not
an enemy combatant, you cannot target him in any way without
due process and a determination. If he is an enemy combatant,
well, there are consequences that flow from that.
How do we determine? I mean, if someone is wearing a
uniform at Normandy in 1944, it is pretty safe to assume he is
an enemy combatant, but--the wrong uniform, that is. But in the
absence of that, how do we determine and under what safeguards
should we determine who is an enemy combatant or not?
Mr. Vladeck. So all I will say briefly, if I may, is that
Article 5 of the third Geneva Convention creates a requirement
that when there is doubt about the status of a belligerent,
there is supposed to be a hearing. It doesn't have to be a
judicial hearing. It could be an administrative hearing.
But there is some requirement that at some point--it
doesn't have to be before you capture them. It does not have to
be before you act. But that at some point, as soon as is
reasonably possible, you are ensuring that, in fact, the
procedural safeguards that you have implemented have produced
the right person. And that is what led to the Supreme Court's
Hamdi decision in 2004, saying that, indeed, we need more due
process, especially where U.S. citizens are concerned.
Mr. Goodlatte. The gentleman's time has expired.
Mr. Nadler. Thank you.
Mr. Goodlatte. I thank the gentleman from New York and the
witnesses.
I recognize myself for 5 minutes, and I would make the
point this. As I listened to the testimony here and we have
gone into this decision-making process, I go back and reflect
on the Constitution and the commander-in-chief. And even though
there is a little political tension over this issue, I don't
want to disempower our commander-in-chief from protecting our
Americans, wherever we might be. And neither do I want to delay
his decision to act.
And so, we are confronted with this question if we are
going to review the decision, either we give carte blanche
authority to the President of the United States as commander-
in-chief to kill an American citizen abroad under the
definitions that come out of the executive branch, or we define
those conditions here by this Congress. And then we ask for a
review. Prospective concerns me too much because that delays
the response. Retrospective then goes either to Congress, or it
goes to the judicial branch of Government.
So which--that is the question that is before us, the
definitions. And I will say for me, it has got to be a
retrospective, not prospective, and I would prefer that we
review it here in Congress by some form rather than handing
over warfighting to the judicial branch. That has always
concerned me.
On the other hand, the politicization of it here in this
Congress, that is the balance. So there is the question that is
before me, and I would just ask each of the witnesses to just
go down the line and weigh judicial or congressional review.
The definitions I don't think we want to try to address today
precisely. But what would be your preference, Mr. Vladeck?
Mr. Vladeck. Both. I mean, I don't know why you couldn't
have both processes operating side by side, where individual
victims of strikes that they believe are unlawful have recourse
to the courts and where this body has its normal oversight
function. I don't know why they need to be mutually exclusive
at all.
I think they serve different purposes, and I think they
vindicate different interests. So I am not sure why it has to
be either/or.
Mr. Goodlatte. And then with regard to security?
Mr. Vladeck. Well, you know, I think the Guantanamo habeas
cases are a very good example for all of us. These are cases
where the Government's arguments all along were concerns about
classified information being disclosed to the public, to the
media, et cetera. And even though there have been some five or
six dozen habeas cases since the Supreme Court's 2008
Boumediene decision, I am unfamiliar with any single instance
where any item of classified information was disclosed through
those proceedings inappropriately.
Mr. Goodlatte. I would agree with that, Mr. Vladeck.
Mr. Wittes?
Mr. Wittes. So I am sort of instinctively opposed to
prospective judicial review of these questions. I do think the
Congress, in the form of the Intelligence Committee and Senator
Feinstein, has issued a fairly substantial statement about what
the Senate Intelligence Committee at least has done in the way
of reviewing these strikes, which seems fairly substantial. So
I do think some of that is already going on.
In addition, I have to say I find Professor Vladeck's
written statement on the attractiveness of post hoc review
judicially to be a very intriguing document. And I think that
has a lot to recommend it, and I commend it to the Committee.
And I also think that Professor Chesney, who has in his
written statement attempted to narrow the categories of
prospective review, which, as I say, I sort of viscerally
oppose, but narrow it down to its finest levels where it would
be least intrusive is a model that has a lot to recommend it as
well.
So I mean, I think there is--I largely agree with Professor
Vladeck that there is opportunities in both spheres.
Mr. Goodlatte. But would it be your opinion that
prospective review would delay an operation perhaps?
Mr. Wittes. I fear very much that it could. I also fear
that the temptation on the part of the executive branch would
be to throw lots of things to whatever judicial tribunal that
was created in order to get cover for things, and you would end
up with a very substantial and unanticipated dialogue between
whatever tribunal you created and the executive in much,
actually, the way that FISA has done in many ways attractively
in that context. I think in the targeting context, it would be
less attractive.
Mr. Goodlatte. Mr. Chesney?
Mr. Chesney. I certainly agree that congressional oversight
should be granular and serious. There should be as much
transparency as possible there. I think that is critical, and I
think that is common ground for almost everybody here.
I think the hard question is the role, if any, for the
judiciary. As Mr. Wittes just said, I endeavor in my remarks to
show that I do come down in the remarks in favor of
prospective, rather than post hoc. But I do so only with
respect to a very narrow set of issues, issues that I don't
think should be reviewed by the judiciary post hoc or after the
fact include the issues that are most time sensitive.
Decisions whether the particular person who is in your
sights for this fleeting moment is, in fact, who you think it
is, whether capture is feasible. Those sorts of features I
don't think are fit subjects for judicial review.
What I do think could be properly reviewed by the
judiciary, and I think in advance in order to give the
executive branch certainty is better, would include mainly the
alleged membership of the individual in the organization in
question and their role within the organization. And I say this
only on the assumption that we are in a situation where it is
not exigent to determine that right now. There has to be an
exigent opt-out.
Mr. Goodlatte. Thank you.
And Mr. Bellinger?
Mr. Bellinger. I think I come out where you seemed to be
coming out in the beginning of your comments. I mean, first, I
think you really have to decide is this a problem that is
coming up so frequently that Congress needs to intervene? We
have only had one example.
That said, it is a very serious example. So if we get over
that hurdle, I think Congress could quite reasonably legislate,
one, the criteria of who should be targeted. And much of it is
in the white paper, but you might put in even more specific
criteria. And then the procedures that would be required for
targeting inside the executive branch.
I would not require either prospective or a retrospective
judicial review. I think the check and balance in our
constitutional system is for reporting to Congress, if possible
beforehand in a classified setting.
There appeared to have been a very long lead time with the
targeting of Mr. al-Awlaki. The executive branch could have
gone and told the Intelligence Committees we are targeting this
person. If Congress says, ``We completely disagree. We think
this guy is just exercising his First Amendment right,'' the
executive should take that into account.
Certainly after the fact, if the executive branch has
targeted Americans, I see no reason why the executive can't
come and report that to Congress. And again, if Congress after
the fact says, ``This is not the authority that we gave to you,
we have got real concerns about it,'' that, to me, is the check
and balance.
Last point. Remember, as you said, we are talking about an
armed conflict situation. And so, tying the President's hands
one way or another before or after with judicial review in an
armed conflict decision as commander-in-chief I think is a very
serious problem. I would not do that.
Mr. Goodlatte. Thank you, Mr. Bellinger. And your point,
prospective, if possible, and retrospective, if necessary, I
see as an alternative.
I thank the witnesses, and I see that my time has expired.
And I would yield to the true gentlemen from Virginia, Mr.
Scott.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Vladeck, the determination has to be made that the
target is a senior operational leader of al-Qaeda, imminent
threat, capture not feasible, consistent with the laws of war,
but did I miss it in the white paper where they talk about the
standard that is used, whether it is beyond a reasonable doubt
or moral certainty or preponderance of the evidence?
Or there is a standard not clearly erroneous. Where is the
standard?
Mr. Vladeck. If you missed it, Congressman, I missed it as
well. I mean, I don't think the white paper goes out of its way
to say what the particular burden is, partially I think because
the white paper disfavors judicial review, which is where that
burden would presumably come into play.
Mr. Scott. What evidence can be--are there any rules of
evidence as to what evidence can be considered?
Mr. Vladeck. There are no--certainly, there are no
legislatively imposed rules of evidence that apply to these
cases.
Mr. Scott. Can hearsay be considered to ascertain whether
or not these factors are true?
Mr. Vladeck. All I will say is there may well be internal
and classified executive branch rules that deal with this.
Certainly, we don't know about any of them.
Mr. Scott. Well, we are talking about the rules that we are
going to by. The internal stuff can change every day. Is there
any prohibition against hearsay being considered?
Mr. Vladeck. No.
Mr. Scott. Why is hearsay not considered admissible in a
court of law?
Mr. Vladeck. I mean, I think the short answer is it is
generally believed to be inherently unreliable.
Mr. Scott. And that can be considered to put someone to
death, best you can determine from the white paper?
Mr. Vladeck. Certainly, there is nothing in the white paper
that suggested it couldn't be.
Mr. Scott. Now judicial review, we have had situations
where you get the hostage situation, imminent, ongoing
situation. Is there any problem with a prospective judicial
review, if feasible, as there is in FISA and post hoc, if it's
not feasible beforehand?
Mr. Vladeck. So I think, Congressman, there are two
problems, one legal, one practical. Because I do think--I mean,
I do think you could solve the concerns that Congressman King
raised through an emergency exception.
But I think the legal concern is there is an Article III
question about whether there is adversity in the judicial
proceeding. The reason why this isn't usually an issue with
regard FISA warrants, like search warrants in criminal cases,
as I elaborated in my written testimony, is because those are
seen as ancillary to the subsequent criminal proceedings.
In this context, without any subsequent proceeding, I think
you would have a very serious problem if the Government had
this ex parte application to a judge with no one representing
the other side either at that point or afterwards.
Practically, Congressman, my concern is, you know, ex ante
judicial review could very well turn into death warrants where
basically judges feel enormous pressure in these circumstances
to sort of defer to the Government, especially without adverse
counsel, adverse parties, adverse presentation. Whereas, in the
context of retrospective review, judges have the hindsight.
Judges can actually see what happened.
So I think there is both legal and practical problems that
would arise with ex ante review, separate from the emergency
situation, which I think you could provide for by statute.
Mr. Scott. Well, how long are people on the list?
Mr. Vladeck. We don't know. I mean, certainly, as I think
the last exchange suggested, it appears to be the case that Mr.
al-Awlaki was targeted and on the list where he could have been
targeted for some extended period of time.
Mr. Scott. So if you are on the list for some extended
period of time, at some point during that time, someone could
have wandered over to an independent review?
Mr. Vladeck. Well, as you know, Congressman, Mr. al-
Awlaki's family did. I mean, there was a lawsuit brought on
behalf of Mr. al-Awlaki in the D.C. Federal District Court
before the operation that ended up terminating his life. That
suit was dismissed by I believe it was Judge Bates on a series
of procedural grounds that it wasn't justiciable, that the
political question doctrine got in the way, et cetera.
So there was, indeed, an attempt to do exactly that.
Mr. Scott. Well, what recourse is there for someone who is
on the list by mistake?
Mr. Vladeck. At least in al-Awlaki's case, the Government--
I don't know how seriously to take this, but the Government
certainly suggested that if he wanted to turn himself in, they
would be obliging. So at least when it is public that the
Government believes it has the authority to kill a particular
person, presumably they could seek to turn themselves in and
then contest it. But there is no procedure for that.
Mr. Scott. Is drone killing the only method for killing?
Mr. Vladeck. No. I mean, I think it is important to keep in
mind that this conversation is not actually about drones as
such. That it is about uses of any number of sources of
military hardware to conduct targeted killings, whether through
an unmanned aerial vehicle, a manned bomber, a Tomahawk missile
fired from a Navy ship in the middle of, you know, a body----
Mr. Scott. Handgun?
Mr. Vladeck. Sure. So, no, it is not about drones, per se,
although I think the technological utility of drones makes it
easier and cheaper for the Government to conduct these
operations than conventional pre-existing technologies might.
Mr. Scott. Is there any rationale for allowing--is there
any rationale for killing them overseas? What if they are found
in the United States, what happens?
Mr. Vladeck. Well, at least according to the white paper,
one of the critical considerations is the feasibility, or lack
thereof, of capture. I have to think that the Federal
Government will never take the position that it is infeasible
to capture an individual who is within the territorial United
States.
But I still think they could probably--if I back up a
second, I think the Government could claim the authority in
exceptional circumstances to use lethal force against a U.S.
citizen in the U.S. Law enforcement officers do it all the
time. So I think with regard to the white paper, that
circumstance won't arise because you will never satisfy the
infeasibility of capture prong. But that doesn't mean that the
Government wouldn't claim such force in another context.
Mr. Goodlatte. The gentleman's time has expired.
And the Chair will now recognize the gentleman from
Arizona, Mr. Franks.
Mr. Franks. Well, thank you, Mr. Chairman.
Thank you, gentlemen, for being here.
I was struck by the Chairman of the Committee's
juxtaposition between surveillance and the drone strikes, and I
will have to go ahead and begin my comments by suggesting that
as we look back not such a long time ago when the
Administration eviscerated the Bush administration for
waterboarding certain individuals under circumstances that
perhaps were at least as compelling as some of those we are
discussing today. And yet the drone strikes are something that
they can move forward to.
And it just seems to me that there is more than a subtle
difference between waterboarding and blowing someone into
eternity. And the hypocrisy of the Administration is profound,
in my opinion, on this front.
With that said, as I have come to expect and anticipate a
certain cognitive dissonance and a certain unwillingness for
this Administration to hold themselves constrained to the
truth, their previous statements, their previous positions. So
my thought today is for those of us that are committed to
protecting the Constitution and protecting the constitutional
way of life for Americans, that we have to then focus very
narrowly on this phrase ``due process,'' and that that has to
be our definitional task.
Certainly, there are none of us, I believe, on this
Committee that would say that we just need to do away with due
process when we are talking about an American citizen. However,
as the other gentleman mentioned earlier, with police officers
and things of that nature, we have due process in this country.
But if there is an imminent threat, and sometimes the degree of
the imminence is taken into consideration, then the due process
exists because of that conditionality.
So what I would like to do, if I could start with you, Mr.
Bellinger, just simply see if we can find some consensus among
the panel as to what critical elements should be in any
congressional outline of due process here and whether there
should be some significant punitive measures built into that
kind of guideline to keep an Administration within the track of
what befits our constitutional premise.
So, Mr. Bellinger?
Mr. Bellinger. Well, thank you, sir.
And I can't resist, as someone who spent all 8 years in the
Bush administration sometimes receiving the criticisms and
slings and arrows from people on the outside, to address your
point about hypocrisy.
I have been supportive of the Obama administration's
counterterrorism policies, including of the drone strikes. I
would like to have seen some of them, now that they are in
office, acknowledge that maybe some of these issues that they
claimed we were making huge mistakes on before are actually
more difficult than they acknowledge. And we see little of that
acknowledgment.
Frankly, one of the reasons I am here today, as a
Republican official, is to give the same kind of bipartisan
support to this Administration that I would have liked to have
seen some of them when we were in office giving to us on these
difficult counterterrorism issues.
That said, with respect to due process, the question of due
process, I think, does not mean judicial process. It can mean
judicial process in some circumstances. But the Constitution
never said judicial process. It says you can't be deprived of
life or liberty without due process.
So what is the process that is due in a particular
situation? In a situation where we have an armed conflict,
i.e., a war, the process I think this Congress can
appropriately say is to say that an American can only be killed
who fits certain criteria. That it has to be a senior al-Qaeda
leader who is planning attacks and that those are imminent
attacks, and the executive branch has to have reviewed this and
reached high confidence that the person reaches those criteria
and, where possible, has notified Congress in advance, if that
is possible, and certainly afterwards to have notified Congress
after the fact.
So I think I would guess that at minimum, the panelists
here would say we could at minimum agree on those criteria if
Congress were going to legislate. And then the only add-on is,
is there some judicial role or not?
Mr. Franks. Well, thank you, sir, and I appreciate your
answers across the board.
Mr. Vladeck, could I ask you to take a shot at it?
Mr. Vladeck. Sure. I mean, I think--so I think we have to
be careful, and perhaps I wasn't sufficiently clear in my
responses to Congressman Nadler, that it is not that due
process is by itself a requirement of judicial process. It is
that the way to ensure that the Government has provided the
process that is due is not simply to take the Government's word
for it, but is to provide some modicum of review, independent
external review that whatever process was due under those
circumstances was, in fact, provided and it was not just
asserted that it was provided.
So, to that end, Congressman, I think this court can look
to the jurisprudence that the Supreme Court has articulated in
these cases--the Hamdi case, for example--with regard to what
kind of due process is due an American citizen, even one who
takes up arms against the United States, in Hamdi's case as
part of the Taliban.
I think there is a lot that we could learn from that
example with regard to the balance that we should strike in
those circumstances, and I think that if this Committee is
serious about codifying those standards, there is plenty of
precedent to base that on.
Mr. Franks. And would you suggest that there might be any
punitive elements in those guidelines for a Government that
fails to follow them? Not just in case--a prosecutor, sometimes
his case collapses if he doesn't do Miranda rights, but
shouldn't there be something more punitive than that in a case
that has such profound constitutional foundations?
Mr. Vladeck. Well, Congressman, in my testimony, I suggest
that you can provide a damages regime. Certainly, there would
come a point where a Government officer might even be breaking
various criminal laws if they are acting with gross negligence
and intending to cause harm or they don't have the authority to
use such force.
My view is that it would be a sufficiently significant step
in this context to even provide and create civil remedies.
That, by itself, would, I think, have an incredibly salutary
effect on the Government's practice.
Going further than that I think would run into the question
of who would prosecute that case? Would the Government really
be interested in prosecuting its own officers and its own
solders for crossing the line in that case?
Mr. Franks. I mean, we do that all the time.
Mr. Vladeck. Well, certainly, it is true in the military
context. So the Uniform Code of Military Justice does provide
for court martialing of our service members when they cross
those lines. I think civil remedies might be sufficient for
senior Government officers.
Mr. Franks. Thank you.
Thank you, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman for his good line of
questioning.
And the Chair now recognizes the gentleman from Puerto
Rico, Mr. Pierluisi, for 5 minutes.
Mr. Pierluisi. Thank you, Chairman.
I thank the witnesses. I have a couple of questions based
on your prior testimony and written submissions.
I have noticed that some of you, if not all, have asserted
that the Obama administration is actually taking a very limited
targeting authority with respect to American citizens. My first
question for each of you then is do you believe that the Obama
administration, consistent with Article II of the Constitution,
could have asserted a broader or far broader targeting
authority?
If the answer is yes, in what respects? Basically, I am
interested in understanding whether you believe the
Administration has gone to the outer limits of its Article II
powers, and if not, in what specific ways it has not.
Mr. Bellinger. Do you want----
Mr. Pierluisi. Yes, each of you to comment on this.
Mr. Bellinger. I think it is an excellent question. I think
the Administration probably has not gone to the outer bounds of
what its constitutional powers would be. Of course, none of us
know really what those bounds are. There is just not a clear
answer to this question.
The Administration, I think, has taken a very restrictive
standard. The exchange with Mr. Nadler actually gave a
particular example. Instead of saying that the only Americans
that could be targeted would be those who are senior
operational al-Qaeda leaders who pose an imminent threat, the
Administration could, I think, have said under the Constitution
that any American who has taken up arms against the United
States as part of an armed conflict could be targeted.
If this were a traditional war, in World War II, and there
were a German American, we would never have said that the only
German American who had taken up arms would be a person who was
a senior leader who posed an imminent threat at the time. So I
think certainly the President would have broader authority, and
to the Administration's credit, they understand that this is a
serious power they are asserting to kill an American, and they
have taken in this case a fairly limited reading.
Mr. Chesney. Sir, I agree with that as well. I would add
that it is noticeable that the Administration's formulation in
the white paper and in the Attorney General's speech is al-
Qaeda specific. It doesn't have to be if we are talking about
the duties and authorities of the President to defend the
Nation in a true case of imminent threat. If that threat came
from some other extremist group or individual that happened not
to have a nexus with al-Qaeda, that power would still be there.
Mr. Wittes. I would just add to that. You framed your
question in terms of Article II, but the Administration could
actually take a much more robust position under the AUMF
itself. And the position would be suggested by the line of
questioning that Congressman Nadler asked before.
The D.C. Circuit has said in the habeas context that it is
enough to justify targeting--to justify detention to be part of
or substantially supporting enemy forces. Now just focus on the
``part of'' component of that. You know, to follow your line of
questioning, the Administration could take the view that an
American who is part of enemy forces is is lawfully targetable
under the laws of war and under the AUMF. It does not take that
position.
It hasn't forsworn that position, to be clear. It said,
what it has said is it has addressed a single very specific
case, which is the case of Anwar al-Awlaki, who it found to be
a senior al-Qaeda operational leader whose capture was not
plausible, who posed an imminent threat and whose targeting
would be lawful under the laws of war. And it asked a
comprehensive question, which is, is it is lawful to target
this guy?
And they limited their answer to that question, I think
rightly and admirably, by the way. They limited their answer to
that question so as not to take on bigger questions and more
difficult questions than they needed to in that moment. They
limited their answer to that question to those three, which are
really four, circumstances.
That leaves a lot of ancillary questions, like what about
the nonoperational senior leader who poses an imminent threat?
What about the operational senior leader who doesn't pose an
imminent threat? What about the U.S. citizen foot soldier? All
of those questions are left open by that, and there is no claim
of authority to target such people.
Mr. Nadler. Would the gentleman yield?
Mr. Pierluisi. Yes.
Mr. Goodlatte. Without objection, the gentleman is
recognized for an additional minute so he can yield to the
gentleman from New York.
Mr. Nadler. I thank the gentleman. I thank the Chairman.
I just want to clarify, since my comments have been quoted
a number of times, that I was not suggesting that we ought to
or that the Administration ought to broaden its targeting
criteria. I was simply suggesting that none of this makes any
sense until you have determined that someone is an enemy
combatant. That seems to me that that is the first question
that must be determined with some sort of due process or
neutral process.
Mr. Wittes. Look, if I may, there are two baskets of
questions here. One is the substantive criteria for targeting,
and one is the procedural dimensions of how you determine
whether somebody is in that substantive criteria or outside it.
When you and I had the exchange earlier, you described a very
broad criteria for targeting and suggested that your anxiety
about U.S. targeting practices vis-?-vis citizens was on the
procedural side whether people were or were not in that narrow
basket--in that basket.
My argument is that what the Administration has done is
actually exactly the opposite of that, which is it has defined
a very narrow substantive basket, and it has no known
procedural or at least no public procedural----
Mr. Nadler. My point was that however narrow or broad the
basket, and I am not suggesting broadening it, you have to
answer that question first--Are you an enemy combatant?--and
have the procedural due process.
Mr. Goodlatte. The time of the gentleman has----
Mr. Wittes. I think all of the members of the panel would
agree with you about that.
Mr. Nadler. I thank the Chairman.
Mr. Pierluisi. Mr. Chairman?
Mr. Goodlatte. I thank the gentleman for that
clarification.
The gentleman from Puerto Rico?
Mr. Pierluisi. May I have just 30 seconds just to confirm
one fact?
Mr. Goodlatte. Without objection, the gentleman is
recognized for 30 seconds.
Mr. Pierluisi. Thank you so much.
This is based on Mr. Chesney's comment before. So the Obama
administration's formulation requires that there be a link with
al-Qaeda before you can do any targeting here. Is that correct?
The way it is formulated right now, this policy requires a link
to al-Qaeda. Is that right?
Mr. Chesney. The policy is formulated in a way that is
careful to say that it is making an affirmative claim of
authority to attack where there is that senior al-Qaeda link.
But I don't think it is written in a way that suggests that
they are denying they have authority otherwise.
But they do build al-Qaeda or associated forces of al-
Qaeda, and of course, the ``associated forces'' phrase raises
the question how broad is that?
Mr. Goodlatte. The time of the gentleman has expired.
And the Chair now recognizes the gentleman from Texas, Mr.
Poe, for 5 minutes.
Mr. Poe. Thank you, Mr. Chairman.
Thank you, gentlemen.
I would like to get back to some basics, and I know this
may trouble Mr. Nadler, but I probably agree with him on much.
Don't make you nervous, Mr. Nadler.
But in the big scheme of things, when this all came to
light, myself and Mr. Gowdy from South Carolina wrote a letter
to Eric Holder back in December asking for specific
constitutional authority and tracking it to the activities of
drone strikes against Americans overseas. We didn't get an
answer. We have sent a letter subsequent to that when we got
more information on February 8th. We still haven't received an
answer from Eric Holder.
And then, as the Chairman has pointed out, there is no one
from Justice here. With their battery of lawyers, we hadn't got
one that will stand here or sit here and tell us the
constitutional authority for killing Americans overseas that
fit this criteria.
I would like unanimous consent to introduce both of these
letters into the record, Mr. Chairman.
Mr. Goodlatte. Without objection, they will be made a part
of the record.
[The information referred to follows:]
__________
__________
Mr. Poe. My background is a judge. I believe in judicial
review. I get troubled by prosecutors who want to do judicial
things and then not tell us how they come to certain
conclusions. I don't buy the argument there is not enough time
to get some judicial review. Twenty-two years of experience,
judges working with law enforcement can move pretty fast under
all of the serious examples that you have talked about.
So I don't buy that we have to let prosecutors do judicial
review. They work for the executive branch. That is just my
constitutional perception on that whole issue.
So I think the points are, as you have said, who fits this
criteria, and who makes the determination that that person fits
the criteria? Senior-level executive branch person yet to be
named, like a draft choice, that troubles me. Who is that
person? We don't know. It is just a senior-level executive
person. I don't think that is the authority of the executive
branch.
And then who makes that determination and then that person
is allowed to be on the kill list. Mr. Chesney, University of
Texas, congratulations, by the way. Two daughters there.
Mr. Chesney. Hook 'em.
Mr. Poe. Hook 'em. But let me ask you this, and you made
the comment during your testimony that if there is a judicial
review, it is a good idea maybe to review it when the person is
put on the kill list.
I am troubled with the concept that they are put on the
kill list, they are killed, and then we are supposed to have a
review after that to see if it was lawful? I mean, that doesn't
do the dead guy much when we find out, oh, we made a mistake
here, you know?
And don't get me wrong. I don't like these people. I think
they need to be--long arm of the law ought to deal with them
about crimes against America. But I would ask for you to weigh
in on this to help us improve this system that we are operating
under because, as you pointed out, you have got to get judicial
review to listen to a phone conversation with an American
overseas, but you don't need judicial review to kill them
overseas.
So do you think we need some kind of judicial review at the
outset of putting this person on the kill list?
Mr. Chesney. Sir, I think it is a good idea, and I think it
can be done, if done very carefully. And I think the key to
doing it carefully so that it simultaneously addresses both the
interests of the citizen and the imperative of protecting the
country that rests on the President shoulders is to
disaggregate the questions you might ask. We don't want judges
interfering in extremely time-sensitive questions about should
we pull the trigger right now in this instance? There is only
this much time to do it.
But that is not actually the fact pattern presented by
these specifically identified kill list scenarios. As we know,
as the al-Awlaki case illustrates, there is a considerable
period of time and there is a distinction between deciding is
the person in the attackable category in general and whether or
not some particular attack should be carried out. And there is
a role for the judiciary if Congress wants to establish it, and
I think they probably should, as to early stage determination,
which isn't a time-sensitive determination in the same way.
Mr. Poe. You know, we have been talking about one
individual. What if the individual is not in one of the
countries that we all suspect where al-Qaeda is? Because now
they are everywhere. What if the individual is in one of our
allies' country? What if they are in France? What if they are
in Mexico? What if they are in Canada? Is the discretion with
the White House, whoever it is, to get that person on the kill
list, and all of a sudden, they end up in France, and we can go
after them?
Mr. Chesney. Sir, I think there is a different set of rules
that come into play in that scenario.
Mr. Poe. All right.
Mr. Chesney. Now it connects up with the Administration's
rationale that they emphasize capture must not be feasible. If
you have someone in France, the United States, Mexico, England,
any of these places, capture is almost certainly going to be
feasible. And that alone may address it.
Mr. Poe. I know my time is limited. In fact, I am out. But
I would just like to ask, though, is that discretionary with
the executive branch? Is that policy, or is that written law?
Mr. Chesney. I don't think--well, the whole problem here
with the uncertainty is we don't have clear written law, right?
It is uncertain. That said, I do think that the feasibility
test may well be implicated by the Fifth Amendment and the
Fourth Amendment.
Mr. Poe. All right. Thank you.
Mr. Wittes. May I just add something to that?
Mr. Poe. That is up to the Chairman.
Mr. Goodlatte. Very briefly, Mr. Wittes.
Mr. Wittes. So, I mean, I do think when you are talking
about potential lethal force operations in allied countries or
countries other than Pakistan, Yemen, Somalia, Mali, you are
talking about a situation where the other legal constraints on
U.S. action, particularly sovereignty come into play.
And one of the things that causes those environments that
we operate in to be relatively permissive is either the consent
of the governments in question to do those operations, which
presumably Canada and France are not going to give, or a
finding--and this connects up with the point that Professor
Chesney was making about the feasibility of capture--a finding
that they are either unable or unwilling to manage the threat
that the individual poses, which their law enforcement capacity
would make very difficult to make.
Mr. Poe. Thank you, Mr. Chairman.
Mr. Goodlatte. Let me, if the gentleman will yield?
Mr. Poe. Certainly.
Mr. Goodlatte. I would yield an additional 30 seconds to
make the point that we don't want to put ourselves in the
position with this analogy drawn by Mr. Wittes that we are
going to rely on the foreign government to protect the rights
of the United States citizen, as opposed to our own government
protecting those rights.
Mr. Poe. Thank you, Mr. Chairman.
Mr. Goodlatte. And I would now be pleased to yield to the
gentlewoman from California, Ms. Lofgren, for 5 minutes.
Ms. Lofgren. Thank you, Mr. Chairman.
I have just a few quick questions. I am, I will just be
frank, troubled that the memorandums that allegedly provide the
legal basis for this have not been shared. And I am just sort
of wondering, and maybe you can't, any of you, answer it. But
if you can, I would be interested. What conceivable reason
there would be for the Obama administration to not share these
memos and what the consequences are for not sharing these
memos?
Anybody who can answer that, I would like to hear.
Mr. Bellinger. Actually, it may surprise you, as a
Republican official, but I will actually take a stab at
defending the Administration on this, having spent 4 years as a
White House lawyer.
This is the private legal advice that was given to the
President of the United States. And just the way this Committee
is allowed to rely on Mr. Ramer's advice and the President
could not say we want to see the advice that Mr. Ramer is
giving to you, to see what advice you are getting----
Mr. Goodlatte. Would the gentlewoman yield on that on
point? Because they have shared that advice with other Members
of Congress.
Ms. Lofgren. Yes.
Mr. Goodlatte. And this is the Committee that has oversight
responsibility.
Mr. Bellinger. And let me just finish the point. What we
are talking about is not sharing a particular document. The
Administration, to the extent they have not made clear what
their legal analysis is, absolutely they owe you a full
explanation of their legal----
Ms. Lofgren. Well, if I may, I mean, what you can and what
you should do are sometimes different.
Mr. Bellinger. Right.
Ms. Lofgren. And it strikes me in this case that this is
one of those cases, where if you take a look at the
Authorization for Use of Military Force, which all of us voted
for, for those of us who were here--there was only one no vote
in the House--it says the President is authorized to use all
necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks.
Now are we to believe that everybody on this list was
responsible for the 9/11 attack? I mean, is that the rationale?
Mr. Bellinger. No. You are exactly right. I think you have
all four of us agree with you that the 2001 AUMF, which is only
about 60 words long--I was involved in drafting it literally
almost on the back of an envelope while the World Trade Center
was still smoldering--is now very long in the tooth.
The good government solution, while extremely difficult and
controversial, would be for Congress to work together with the
executive branch to revise that AUMF. It is completely unclear
about what it covers, who it covers, where it covers it.
Ms. Lofgren. Well, if I may, I think it is not as unclear
as you suggest. I mean, this was a limitation, and there were
big arguments about it. As you are, I am sure, aware, there was
a prior draft that was much more expansive, and it was narrowed
so that we could get bipartisan consensus, and it was narrowed
for an important reason.
And I guess I--yes, the executive has the ability to keep
his legal advice confidential. That is a longstanding
principle. But since it looks like at least questions are
raised as to whether the executive is complying with the law,
that if he feels he is, I think it would be a very positive
thing for the Administration to share that legal theory with
this Committee and with the American people, who I think have
doubts that are substantial.
And if it can be cleared up, that would be a good
government response, it seems to me. And if it can't be cleared
up, then we have another serious type of problem that we have
to deal with.
Mr. Bellinger. I will agree with you about 99 percent of
the way. To the extent that the Administration's legal theory
remains unclear to Congress, anybody in Congress, I think
Administration officials should be up here to explain it,
either publicly or privately, to put down in writing what they
can. I think the questions that you raise are absolutely fair.
Is it really clear that 4,000 people who are dead, that
every single one of those fell within the AUMF, or did the
President in some cases rely on his constitutional powers?
These are really legitimate questions. The only thing I would
say is that the President of the United States is allowed to
receive a particular memo on a particular day and rely on that
particular counsel.
Ms. Lofgren. Well, I will just say--and I was not a huge
fan of the Bush administration, as I think many of my
colleagues know. But we actually did get access, this Committee
did get access to their memorandum laying out their rationale.
I thought it was poorly written and misadvised, but at least we
were provided with the analysis that they were attempting to
rely on. And I would expect no less from the current President.
I yield back.
Mr. Goodlatte. I thank the gentlewoman.
And the Chair recognizes the gentleman from South Carolina,
Mr. Gowdy, for 5 minutes.
Mr. Gowdy. Thank you, Mr. Chairman.
In a brief, but inspiring piece of bipartisanship, I want
to express, along with my colleagues, my frustration, Mr.
Chairman, at the DOJ's absence today. Some of my colleagues
know I worked there. I have plenty of friends that remain. I
respect their work.
I understand not responding to a letter from some guy from
South Carolina. I don't really understand not responding to
Judge Poe's letter. I really don't understand not respecting
this Committee enough to send someone.
Because if they were here, and don't misunderstand me. I
appreciate your presence. I am grateful that you came. But my
questions were going to be directed to them for this reason. I
don't need a DOJ memo to tell me that you can use lethal force
to repel an imminent threat. I didn't need them to tell me
that.
Police officers shoot folks all the time. Private citizens
shoot folks who are invading their homes all the time. In fact,
noncitizens can shoot a United States citizen without having to
go to a judge beforehand. Now there is review afterward, both
criminal and civil. But I didn't need the Department of
Justice, Mr. Chairman, to tell me that.
I also did not need the Department of Justice in a memo to
explain to me that in times of war you don't need a judge
picking your targets for you. In a time of war, you can't have
a judge weighing and balancing whether or not there is too much
collateral damage in this building or this village.
What I really want to ask the Department of Justice, Mr.
Chairman, is this. There are two references in this memo were
the target of a lethal operation a U.S. citizen who may, who
may have rights under the due process clause in the Fourth
Amendment. That is on page 2, Mr. Chairman. And then on page 5,
the department assumes that the rights afforded by the Fifth
Amendment's due process clause, as well as the Fourth
Amendment, attach to a U.S. citizen even while he is abroad.
So if the Fifth Amendment attaches and the Fourth Amendment
attaches, does a U.S. citizen traveling abroad enjoy the full
panoply of constitutional protections? And if not, why not?
Whichever law professor--I would pick the one that gave me a
bad grade in con law, but he is not here. So whichever----
[Laughter.]
Mr. Wittes. I think I can take a crack at why the
Administration----
Mr. Gowdy. Well, no, I mean, here is what I want. Does the
Eighth Amendment apply?
Mr. Wittes. So I think the background behind which the memo
that this white paper is based on is critical to this question.
Mr. Gowdy. I just--and I appreciate that. I just want to
know does a U.S. citizen enjoy the full panoply of
constitutional protections when they are traveling abroad?
Because this memo said they may, or we are assuming. Does the
Fourth Amendment apply?
Mr. Wittes. Well, so I think--I will let an actual
professor of constitutional law answer.
Mr. Gowdy. Oh, I don't care. Anybody who knows. Does the--
do I have to abide by Miranda?
Mr. Wittes. The Supreme Court said in Verdugo-Urquidez, it
raises very serious, held that the Fourth Amendment does not
apply abroad, and there are----
Mr. Vladeck. To noncitizens.
Mr. Wittes. To noncitizens. There are----
Mr. Gowdy. I am not talking about noncitizens. I am talking
about citizens abroad, do they or do they not----
Mr. Vladeck. The short answer is yes, right? The short
answer is----
Mr. Gowdy. Oh, so the Eighth Amendment applies?
Mr. Vladeck. Yes. Now the court----
Mr. Gowdy. And the Fifth Amendment applies?
Mr. Vladeck. Yes. But courts----
Mr. Gowdy. And the Sixth Amendment applies?
Mr. Vladeck. Courts have said, Congressman, that in that
context the rights may vary in their scope.
Mr. Gowdy. Okay. Well, this is where I am headed. How is
the analysis different if it is a U.S. citizen that meets the
department's criteria that is in Charleston, South Carolina,
instead of somewhere else? So if you have the same panoply of
constitutional protections overseas as here, can you use the
imminent threat argument to take out an American citizen on
American soil? And if not, why not?
Mr. Vladeck. Congressman, I think this goes back to a point
we were discussing before, which is the relevance of the
feasibility of capture piece of this. And----
Mr. Gowdy. So that is the only thing we get to hang our hat
on is the feasibility from some senior-level DOJ official who
decides whether or not it is feasible or not to capture me.
Mr. Vladeck. Well, as I suggested, Congressman, I think
that feasibility should be reviewable after the fact. But I
think----
Mr. Gowdy. That is of little consolation if you are dead.
Mr. Vladeck. I think that----
Mr. Gowdy. Is there criminal review?
Mr. Vladeck. If the Government wants to bring--if the
Government wants to indict one of its officers for violating a
criminal statute, certainly.
Mr. Gowdy. So you think this memo would allow. Well, who
would do it? Because that would be the executive branch, right?
We have not had much success getting the executive branch to
enforce laws against itself. I can just tell you in the 2 years
I have been here, we are 0 for 3 or 4 on that.
Mr. Vladeck. Well, Congressman, certainly, there is
precedent. If this Congress wanted to revisit, for example, the
independent counsel statute, I think we could have a very
interesting hearing on that front as well. But----
Mr. Gowdy. Well, I am out of time. But Mr. Chairman, I
would love at some point for the Justice Department, if we are
not taking too much of their time, to come and explain to us
whether this analysis is equally applicable to American
citizens on American soil. Because the feasibility of capture
is little consolation to me if that is the only thing
protecting us from this operation.
Mr. Goodlatte. I thank the gentleman. And I would note that
the invitation was extended, and it will stand open.
The Chair now recognizes the gentleman from Florida, Mr.
Deutch, for 5 minutes.
Mr. Deutch. Thank you, Mr. Chairman.
Mr. Bellinger, you said earlier in your testimony and then
in an exchange with Mr. Nadler, you spoke about the need to
have clear international rules. Mr. Nadler raised the question
of what would happen if action were taken by other countries.
And I had to excuse myself to attend another meeting, and if
you have elaborated, I apologize for asking again.
But this conversation that we are having about
constitutional protections and how this drone program against
al-Qaeda functions under our Constitution is obviously of the
greatest import to this Committee. But the issue that you raise
is a very good one. What are those international rules? Who
sets them? What standards would be in place?
And is it--well, let me actually let you elaborate a bit,
and then I will ask a follow-up question.
Mr. Bellinger. No, I am delighted really that you asked
that question. We know the Judiciary Committee, of course, is
most concerned about the protection of Americans in this
hearing.
But as has been alluded to, 3,000 to 4,000 of the people
who are dead are non-Americans. And so, in those cases, they
don't have constitutional rights. The rules that would apply to
them would be international law. And both the Bush and the
Obama administrations have tried hard to clarify that they are
complying with international law. They are not using force in
another country in violation of international law, or they are
not killing people in assassinations or murders.
That said, no other country in the world has come out
publicly and said they actually agree with our position. That
is a very unsteady place for the United States to be. I was the
general counsel of the State Department. I wanted the United
States to appear around the world to be acting in accordance
with international law, and the Obama administration has
asserted this, and I believe that they are.
But we are in a position where most other countries don't
agree with this, are beginning to accuse us of violations of
international law. And the Administration needs to work harder
really to clarify those rules.
Mr. Deutch. What are the violations that--who is making
those accusations, and what are they accusing us of?
Mr. Bellinger. We have got--other countries have begun to
raise concerns. There are lawsuits now both in Pakistan and in
the UK. There is a lawsuit against the British foreign
secretary, suggesting that the sharing of intelligence
information by the British government with the American
Government may actually constitute war crimes. That is making
British intelligence officials nervous. That is being closely
watched throughout Europe.
Mr. Deutch. What would those--in order to address these
issues going forward, both because of potential actions that
other nations may take that would put, as you described
earlier, that will put our State Department spokesman in a most
difficult situation to have to deplore those while standing up
for the drone program that we utilize, what are the standards
that would be put in place, though? And how--tell me what that
regime looks like and where does it come from.
Mr. Bellinger. These are great questions. I spent 4 years
as legal adviser in thousands of conversations with European
allies, some of whom are actually in this room today,
representatives of different embassies, listening to the Bush
administration try to explain why what it was doing, which
appeared to be improper, was actually lawful.
And the Obama administration, which never expected to be in
the same position of having allies around the world accusing it
of illegal activity, frankly needs to go to the same effort
now. And the rules would essentially be to say it is not to
start with a treaty. This is too difficult to try to negotiate
a 194 country treaty. But to agree on basic legal principles,
such as a country can use lethal force against a terrorist in
another country who is threatening an attack if that country is
unwilling or unable to prevent that threat.
In most cases around the world, 190 countries, the
countries are able to prevent that threat. They can go arrest
the person. Their polices work. But in four or five countries--
Yemen, Somalia, Pakistan--we want to get countries around the
world to acknowledge the United States or any country's right
under international law to use force to kill someone in another
country who is posing a threat when it can't be addressed in
another way.
I think we can get there, but it certainly makes other
countries uncomfortable, and they are just not going to agree
to our position unless we go out through some aggressive
international legal diplomacy. I mean, really, it is a great
line of questions.
Mr. Deutch. And the likely position that some would take
that would point to this hearing and the debates in this
country and say you are having a hard time--hard enough time
coming to terms with this idea at the very earliest stages of
the potential that drones will offer. You are having a hard
enough time coming to terms with this under your own
Constitution, and now we are going to have a broader discussion
internationally. You are going to suggest to us what we should
and shouldn't do.
I am not sure that we are quite at the point where that
conversation can take place.
Mr. Bellinger. It is very difficult. The Bush
administration spent a long time trying to explain to people
why it was lawful just to detain people without trying them.
Most other countries in the world said, ``Wait a minute. You
can't hold someone without trying them. That is a basic element
of due process.''
Well, this is actually much more aggressive. The Obama
administration isn't just detaining them. They are killing
them. And so, we need to work hard to explain, as a country
that is committed to the rule of law, why to other countries
who look to us for our example, why what we are doing is, in
fact, legal. We can't--it is important to have this hearing
here, but we need to go around the world and explain why it is
legal under international rules.
Mr. Deutch. Thanks. I appreciate it, Mr. Bellinger.
Mr. Goodlatte. I thank the gentleman. Good questions, and
the time has expired.
The gentleman from Florida, Mr. DeSantis, is recognized for
5 minutes.
Mr. DeSantis. Thank you, Mr. Chairman.
Thank you all for your testimony.
I guess I disagree a little bit with the characterization
of this as very limited. I mean, it is limited in the sense,
the DOJ analysis in the sense that they say all we are saying
is that we have sufficient grounds in this instance. But they
don't say that they can't go beyond that, and they don't say
that there is going to be more restrictions otherwise.
Do you all agree with the fact that they base their
analysis not simply on the AUMF, but basically said there is
Article II authority and Article 51 authority, that if you
didn't have the AUMF, the President would still have the
ability to engage al-Qaeda leaders overseas?
Mr. Chesney. Well, I think the Administration would always
take the position that it has the authority under Article 51
and Article II to defend the country against an imminent
threat. That, of course, leaves open the question of what the
substantive content of an imminent threat is.
But to the extent that tomorrow Hezbollah presents an
imminent threat, though it is totally outside the AUMF, the
Administration would certainly assert the authority, both as a
matter of Article 51 and at a domestic level under Article II
to counter that with lethal force.
Mr. DeSantis. And perhaps even if it wasn't an imminent
threat, such as the example of Libya, there was no
congressional authorization for us to go and get engaged in
Libya. So I am somebody who I really think the AUMF is
important because I think that activates the President's war
powers.
I think when you are dealing with these issues, whether you
are going to treat it in a civil context or a law of war
context, the fact that this Congress has authorized that, to
me, means a lot. And so, I guess the logic of this analysis,
although it only applies to senior al-Qaeda leaders, there is
nothing preventing the Administration from applying this in
other contexts. I mean, you do have to make analyses that can
apply to different facts.
And so, I guess my question, and we can just start with Mr.
Bellinger. Libya, no AUMF for Libya. We went in. It was an
international coalition. My question is if there was an
American citizen who, say, traveled to Algeria, joined the pro-
Gaddafi army, was somebody who was a major operational leader
in bringing arms into Libya, that would fight not only the
resistance, but American forces and our allies, based on how
you read the memo, do you think that they would have been
justified or do you think this provides justification to engage
an American citizen in that instance?
Mr. Bellinger. The answer is, under the memo, probably not.
Because under your facts, the person would not be a senior
operational al-Qaeda leader that was posing an imminent threat
of violence to the United States.
Mr. DeSantis. Right. But what my question is, is they limit
it to that, but the logic of what they are saying, why is it so
important--if the AUMF is not critical, the al-Qaeda versus
somebody who is fighting Gaddafi. So is there a logical
distinction between those two if you don't think the AUMF is
critical?
Mr. Bellinger. Well, this Administration, of course, at
least has said that they are relying only on the AUMF. There
are a lot of us who wonder 12 years later how it can possibly
be that all of this use of force in a lot of different
countries around the world against people who may have only
been 10 years old in 2001 still falls under the AUMF.
So I think it is a good set of questions as to whether this
Administration would rely on the President's constitutional
authority to strike somebody who did not fall in the AUMF.
Mr. DeSantis. And here is just where I am reading in the
memo. In addition to the authority arising, in addition to the
authority arising from the AUMF, the President's use of force
against al-Qaeda and associated forces is lawful under other
principles of U.S. and international law, including the
President's constitutional responsibility to protect the
Nation, the inherent right of national self-defense under U.N.
Charter Article 51.
I obviously agree with that if it is a truly imminent
threat. The question is in a situation like Libya, where it is
very much an intervention of choice, probably didn't pose an
imminent threat to the United States, how does this kind of
framework apply in that instance with an American citizen?
Mr. Vladeck. But I mean, Congressman, even there, I think
the question would be suppose that we had a regimen of fighters
stationed at an Air Force base in Libya. Presumably, if an
American citizen who goes to Algeria to take up arms on behalf
of pro-Gaddafi forces is then involved in an attack on U.S.
military forces who are involved, who are stationed there, then
I think we wouldn't have to talk--that wouldn't be----
Mr. DeSantis. Well, no, no. Right. But I agree with that.
But not necessarily involved in an attack. Somebody who is
across the border in Algeria, who is maybe doing logistics or
something.
Mr. Vladeck. And so, that is right. We haven't talked a lot
in this hearing about international law, but I think it is
relevant. It would be very relevant at that point whether in
fact what was true in Libya was a non-international armed
conflict or even an international armed conflict that would
justify the assertion of military force. Because I think you
would have both domestic law problems insofar as it was outside
the scope of the AUMF or the war powers resolution and very
serious international law problems if it was not part of a
larger armed conflict.
Mr. Wittes. May I just add something to that? So I think
one of the oddities of the white paper--and I would actually
think it is a very ripe area for this Committee to follow up
with the Administration about--is exactly what work the word
``imminent'' is doing. It is not clear to me from reading the
white paper whether the word ``imminent'' is an attempt to get
over domestic constitutional hurdles, whether it comes from
sort of resort to force questions in international law, the way
Steve was just referring to, or whether it is an attempt to get
around domestic criminal prohibitions against--as a sort of
affirmative defense in domestic criminal prohibitions against
murder of Americans overseas, or whether it flows from some
other need.
It is simply there as an apparently self-imposed
constraint, and it is not exactly clear what legal problem it
is designed to solve. And I think some of the questions that
you are asking, the answers to them would be different
depending on what work the word ``imminent'' is doing. And I
sort of talk about this a little bit in my written statement,
but I think it is an area that is very worth this Committee
pushing the Administration for some clarification.
Mr. DeSantis. Thank you. And thank you, Mr. Chairman.
Mr. Goodlatte. Thank the gentleman.
The Chair recognizes the gentleman from Texas, Mr. Gohmert,
for 5 minutes.
Mr. Gohmert. Thank you, Mr. Chairman.
And this is an exceedingly important topic. We do
appreciate your being here today. Obviously, the Justice
Department's folks are busy doing something more important than
having oversight. I wish that they didn't need it.
All of these issues are deeply troubling, and I, like my
friend former Judge Ted Poe, big believer in due process. We
are talking about imminent attack is one of the issues, and we
have got a lot of people that brought up the issue of al-Awlaki
being killed in Yemen. But I think it is good to look ``what
if'' scenarios before those scenarios actually happen.
We know that al-Awlaki had led prayers for Muslim
congressional staffers here on Capitol Hill. We know that he
was probably not done in the United States.
Can you foresee a time when someone like al-Awlaki is on a
hit list, finishes what he was doing in Yemen, and somehow gets
back in the United States? If there was concern of imminent
attack while he was in Yemen, could there be those same
concerns? When would it then be possible for someone on the hit
list, as al-Awlaki was, to be hit in the United States proper?
Mr. Wittes. Sir, I think the--sir, the al-Awlaki case will
be someday the subject of a truly wonderful book. It is a very
complicated and interesting history.
I think if Anwar al-Awlaki had made it back to the United
States, I don't think there is dispute among anybody I have
ever spoken to that the proper way to handle him would have
been for the FBI to arrest him and for him to be prosecuted in
a U.S. Federal court.
Mr. Gohmert. But my question was not about what was proper.
My question was about the possibility of someone on the hit
list being found back in the United States, like al-Amoudi.
Al-Amoudi was arrested in 2002 at Dulles International
Airport. He was arrested, as you talk about, but he had been
very close to the Clinton administration, had worked with the
Bush administration, and yet we find out actually he was
involved in supporting terrorism internationally. And so, he
gets arrested, and now he is doing 23 years in prison.
I am asking what could be the prospect that someone get
back in the country, and from a political standpoint, their
arrest could potentially, like al-Awlaki, if he started talking
about the people he worked with on Capitol Hill, the people
that he had met with and worked with, it obviously would be
very politically embarrassing.
What if you have hypothetically someone who has been
working closely with a President. We know we had a member of a
known terrorist organization meeting in the White House last
year, even though Secretary Napolitano, sitting where you are,
could not answer that she even knew that was happening when it
was in the papers. By the time she gets over to the Senate, she
then says, ``Oh, we checked. He was vetted three times.''
There are things that could end up, hypothetically, proving
so politically embarrassing that if somebody gets back in the
United States, someone might look for a way to see that they
never testify. We are talking hypothetically, but I am wanting
to know what are the possibilities that something like that
could happen? So that is my question.
Mr. Wittes. Sir, nothing in the Administration's white
paper and the Attorney General's speech would suggest that that
would be lawful. And I would hope that any Administration,
Republican or Democrat, faced with such a situation would
behave like patriots and would proceed according to the law and
the Constitution. And I would hope that this Committee, in the
event that that did not happen, would consider it under its
impeachment power.
Mr. Gohmert. And then when no one from the Justice
Department cared to participate, then what? We find them in
contempt, and then it goes to the U.S. attorney and nothing
happens, as it just happened last year.
Mr. Wittes. Sir?
Mr. Gohmert. Any other comments from anybody else? I mean,
this is a real issue because not everybody under political
pressure acts like patriots.
Mr. Chesney. I can simply say that it is quite clear to me
it would be unconstitutional to use lethal force against a
person in that scenario precisely because capture would be
feasible. He may still be part of an organization, may still be
a senior leader in al-Qaeda, what have you. But----
Mr. Gohmert. And what if your contention is there is
imminent attack? It is planned. He helped set this situation up
in Yemen, and we need to take him out.
Mr. Chesney. Still unconstitutional unless----
Mr. Goodlatte. The time of the gentleman has expired.
Mr. Gohmert. Thank you, Mr. Chairman.
Mr. Goodlatte. I thank the gentleman.
And the Chair recognizes the gentleman from Florida, Mr.
Garcia, for 5 minutes.
Mr. Garcia. Real quickly--thank you, Mr. Chairman--what
steps could the executive branch take to allow appropriate
congressional oversight and an informed public debate? And that
I leave it to all of you.
Mr. Bellinger. Well, maybe we will just go down the line
here. One, I think the Administration does need to be more open
in their legal analysis. I do think it is disappointing that
they did not sent a witness. We are happy to be the second
string here to try to help you out.
But I, as a former Government official, think that it
does--it is incumbent upon this Administration to put witnesses
forward to explain and answer your questions. So that would be
thing one.
Second, I do think that the executive branch could work
with Congress to craft a narrowly tailored law that would
specify the circumstances in which an American can be targeted
and the notice process to Congress. So I think that would be
the main thing that the executive branch could do would be to
work with Congress on narrowly tailored legislation that does
not tie the hands of the President.
I will go back on the judicial review point that we--in all
these cases, we are talking about an armed conflict. And the
gentlemen from Texas and South Carolina are no longer here, but
we are talking about a situation where the President is dealing
with a war, with an armed conflict. And it is really
inappropriate to insert judicial review to tie the President's
hands in a war.
No one would ever have suggested that before the President
could order an attack against a German American who was a high-
level German leader that one had to go to a judge beforehand or
afterhand to allow that German American's family to come and
have a judge perhaps tie the President's hands.
Mr. Chesney. Active participation and oversight efforts by
this Committee and others obviously is critical, and I echo
what has already been said on that point. I think--we were
asked earlier how much consensus we had on the substantive and
procedural issues that are driving all of this. I think it is
fairly clear that we have consensus that it would be very
useful for Congress to express itself, if it was willing to do
so, as to what the substantive bounds of targeting an American
ought to be. If there is an issue with the imminence standard
or the feasibility of capture standard, this can be addressed.
I don't think we have consensus as to whether and to what
extent a judicial role is either necessary as a constitutional
matter or permissible. And I think I am probably the one who is
most in favor of a permissible role, ex ante. Steve is the most
in favor ex post, and I think other than that, we have an array
of views here.
Mr. Wittes. I think one thing the Administration could do
is to talk more and more and more about what the internal
procedures it is using actually looks like. So starting with
the President's speech at the National Archives in 2009, and
particularly continuing through Harold Koh's speech at ASIL the
following year, and in a series of speeches over the next 3
years really, the Administration talked a lot about the
underlying legal regime, not at the level of granularity that a
lot of people want, and I certainly would encourage them to be
more granular on that score.
But to me, the biggest hole is actually not a legal hole.
It is a procedural hole, and it goes to the question that
Congressman Nadler and I were discussing before. Not the
substantive content of who you can target. They have been
pretty clear about that. It is what hurdles do you have to go
through before you conclude that somebody is in that basket at
all?
And on this question, they have said very, very little
except to say repeatedly that there are rigorous internal
checks. But I would like to see them, you know, talk more about
what those internal systems look like. Almost everything we
know about it is a result of press coverage and leaks. It is
time for them to have something substantial to say on the
subject.
Mr. Vladeck. I don't have much to add to my colleagues
other than I think that the most interesting omission from the
white paper is exactly what Mr. Wittes was suggesting, the lack
of any sort of detailed explanation of the procedural process.
If there are reasons why the specific facts and the
intelligence that led us to discover those facts should be kept
classified, that is one thing. But I don't know why the
bureaucratic process that is undertaken by the executive branch
in a hypothetical case is a matter of national security.
Mr. Garcia. I think you can imagine the problem is that we
argue about everything here, right? And so, the idea that we
would put some kind of process forward. I fully understand your
point, and I appreciate it. And as a lawyer, I think it is
necessary.
But the idea that that process would be put forward to then
be analyzed in a vacuum without the exigency of circumstances
is I think something that would be a debate that I understand
your wanting it, but I understand under the present climate, it
is just almost impossible.
Mr. Wittes. I think there is a lot of merit to that point,
and I also think there is an additional factor, which is not
about this body, but it is about the FOIA litigation
environment that the Administration is in. And one of the
problems that, you know, within the bureaucracy people are
constantly worried about is the incremental effects on FOIA
litigation that every incremental disclosure has.
And I think that that is every time you consider saying X,
you know that you are going to get a brief filed in the next
day that says you have now confirmed X, we want 2X. and I think
somehow we need to figure out whether there is some kind of
safe harbor that we could create that doesn't actively
discourage the Administration from making disclosures,
particularly to this body----
Mr. Garcia. Maybe that is where we should be working
towards. I have listened to Johnson tapes where toward the end
of the war, he got into this crazy habit of sitting with his
Cabinet deciding where the bombs were going to land. It is just
an insane process when you are engaged in war. I am sure I
don't have to make that point to all of you.
Likewise, I think you have watched the insane process that
we partake of here when we argue how many angels fit on a
pinhead. So maybe you putting forward a process that you think
would be acceptable. I just find that if the President would
engage in that, I think what he would be doing is opening up an
argument for my friends on the right, which would be to say
look at all the due process these guys get, right? And then a
point from our side, which would say that is not enough due
process.
And then, of course, the whole point of this is missed,
which is these are enemies of our country. We hope that when
someone is elected from our side or the other side that they
use this discretion of their office, which in this area tends
to be pretty broad in wartime, with all the merit that we would
expect someone who serves in that role.
But gentlemen, thank you for your thoughtful answers, and
thank you for your fighting for these issues. It is important.
Mr. Chairman, I yield back the balance of my time. Thank
you.
Mr. Goodlatte. I thank the gentleman.
And the Chair is pleased to recognize the gentleman from
Georgia, Mr. Collins, for 5 minutes.
Mr. Collins. Thank you, Mr. Chairman. I appreciate it.
I mean, as we come to sort of this timeframe, I think what
is interesting is I agree with my gentleman from across the
aisle. We do argue sometimes about things, the angels on the
top of a pinhead. But the problem we have here today is we
can't argue about anything because Justice chose not to show
up. They forfeited. They came. They had an opportunity, and
instead of engaging within the confines, they chose to take a
pass. They chose not to come again.
It is interesting in your comments earlier about being in
the Bush administration over to the Obama administration. It is
amazing to me, as my grandmother used to tell me a long time
ago, don't criticize somebody too hard. You might be in their
position one day. It is amazing what has happened now. They are
in that position.
And I think what has been said here on several occasions
really highlights that. I believe honestly the Administration
doesn't want a definition of imminent threat because at that
point then they have to actually define what is imminent and
when is it going to be applied and in what area is it going to
be applied? You don't really want a feasibility of capture.
I would tend to disagree, although this esteemed panel has
said, well, if they were in the United States that they could
always fall back on feasibility and that would exempt them. I
am not so sure that is actually true, not in our society today.
As we look at this, I do have the distinct concern is what
is and how long this white paper depended on the AUMF. That was
the basis of its whole determination. How long do you feel--in
a sort of a short answer here, how long can this Administration
or even follow-on Administration keep this argument? How long
is this going to last? Especially when we have shut down the
war in Iraq. We are getting ready to move out of Afghanistan.
And as someone who has served in Iraq in this area, I want
to just in a brief answer--I have another question--how long
can they continue to depend on this?
Mr. Chesney. Sir, a couple years ago, my colleague Mr.
Bellinger wrote an op-ed in the Washington Post warning that
the AUMF was growing stale. More recently, Mr. Wittes, myself,
Professor Jack Goldsmith, and Professor Matt Waxman just this
week published a paper arguing that the growing threat of
threats beyond AUMF is making it more and more imperative that
Congress look at this issue very seriously.
Mr. Collins. Well, I think the question also comes here,
the determination of whether it be before the action is taken
to the process of judicial review, if there is one, or
standards review or opposed, which I have a question about
that, which I will get to in a second. I think the issue that
comes to my mind here is we don't really have this review right
now. There is that veil of secrecy, if you would.
And I would say from this Administration, there is no one
denying the Article II privilege. There is no one denying that
there is--the ability is there. However, what we are having a
real issue with here and I think the American people are having
a real issue with is we have the secrecy going on. Explain at
least in the sense when we are dealing with American lives
overseas and you have a process that you say you have a process
on, that is about like me going to my 14-year-old and saying,
``Okay, what is your decision-making process?'' ``No problem,
Dad. I've got a process.'' ``What's your decision-making
process?'' ``Just trust me.'' This is not what we can take.
I do have a question, though, about if we do it after the
fact. Of course, I have a problem with the fact that they are
dead. You know, that, to me, is sort of damages, as you put in
your paper, never make you whole completely.
But my question is, and you brought this up, we wouldn't
indict one of our own, and my colleague, I believe Mr. Gowdy
from South Carolina, made this comment. We are not going to
indict one of our own. And if we did, let us just play this out
for a second. If we did decide who was at fault, my question
for you is who would be at fault?
What we have seen many times is we are going to throw the
lowest person under the bus. It is going to be the drone
operator. He should have disobeyed--so explain to me, if you
can, what is the process? Where would you stop in culpability,
and would it stop at the President?
Mr. Vladeck. Congressman, I think it would depend on the
decision-making process, which, as you mentioned----
Mr. Collins. Non-existent.
Mr. Vladeck. Or I doubt it is non-existent. We are
certainly not privy to it. And so, I think it would very much
depend on who actually was the one who made the decision that
had the legal error in it. Who is the one who said, oh, in
fact, even though this guy only was at this guest house, that
is enough to decide that he is a senior operational leader of
al-Qaeda. And I think that would be where the buck would stop.
But if I may just briefly, I think the Congress could write
a statute where the damages piece of it wouldn't depend on who
was actually at fault. The purpose of the Westfall Act is to
say that when a Federal officer is acting within the scope of
his employment, it is the Federal Government that is at fault
writ large. We are not going to point the finger at one guy who
is just doing his job.
Mr. Collins. Well, we also know how that plays out in the
press as well, and we also know how it will play out in
Administration politics on really, frankly, both sides. This is
the concerning part, Mr. Chairman, as we come to at least my
ending here is, again, I want to state it again. As has been
said many times before, but I think it is the Administration
today had a chance to do what this President has said overall,
that he wants to have an open Administration which reflects the
priorities of his Administration and his people. This is not
happening. They took a forfeit today.
They took a forfeit, when they could have easily came. And
if they said, no, I can't talk about that, but we can talk
about this. Or they could get with this Committee on a
classified level. There are ways to do this. But simply
ignoring a sitting Committee and saying we have got other
things we want to do? Maybe there is other issues more
pressing.
But I think the American people, when they see this, this
is a pressing issue. This is something that matters. Because in
the end, you made a statement earlier today, Mr. Bellinger,
that said, well, they say highlight it because we know of one
incident. Do we really know we have one incident? Because we
have not been able to see. That is the concern I have.
And Mr. Chairman, this is why this is important. This is
why this Committee needs to have the oversight, and this needs
to have the Administration actually show up to the game.
With that, I yield back.
Mr. Goodlatte. I thank the gentleman for his very pertinent
comments.
And I want to thank all the members of this panel for a
very good exposition of the issues involved here. I, along with
the gentleman from Georgia, the gentleman from New York, and
others are very troubled by the fact that we have not had
cooperation from the Administration in terms of producing
important documents that we need to review to conduct our
oversight properly or a witness on behalf of the Administration
to testify to this.
So we will continue to work together in a bipartisan
fashion to conduct the oversight that is necessary and to take
the next steps that may be necessary. But in the meantime, we
probably will have additional questions for each and every one
of you. And so, in a moment, I will ask for unanimous consent
to allow Members to submit written questions to you, and we
would hope that you would answer those as promptly as you can.
This concludes today's hearing, and without objection, all
Members will have 5 legislative days to submit additional
written questions for the witnesses or additional materials for
the record.
And the hearing is adjourned.
[Whereupon, at 12:29 p.m., the Committee was adjourned.]