[Senate Hearing 113-876]
[From the U.S. Government Publishing Office]
S. Hrg. 113-876
DRONE WARS: THE CONSTITUTIONAL
AND COUNTERTERRORISM IMPLICATIONS
OF TARGETED KILLING
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
----------
APRIL 23, 2013
----------
Serial No. J-113-16
----------
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
S. Hrg. 113-876
DRONE WARS: THE CONSTITUTIONAL
AND COUNTERTERRORISM IMPLICATIONS
OF TARGETED KILLING
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND HUMAN RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED THIRTEENTH CONGRESS
FIRST SESSION
__________
APRIL 23, 2013
__________
Serial No. J-113-16
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
U.S. GOVERNMENT PUBLISHING OFFICE
26-147 PDF WASHINGTON : 2018
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
DIANNE FEINSTEIN, California CHUCK GRASSLEY, Iowa, Ranking
CHUCK SCHUMER, New York Member
DICK DURBIN, Illinois ORRIN G. HATCH, Utah
SHELDON WHITEHOUSE, Rhode Island JEFF SESSIONS, Alabama
AMY KLOBUCHAR, Minnesota LINDSEY GRAHAM, South Carolina
AL FRANKEN, Minnesota JOHN CORNYN, Texas
CHRISTOPHER A. COONS, Delaware MICHAEL S. LEE, Utah
RICHARD BLUMENTHAL, Connecticut TED CRUZ, Texas
MAZIE HIRONO, Hawaii JEFF FLAKE, Arizona
Bruce A. Cohen, Chief Counsel and Staff Director
Kolan Davis, Republican Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Human Rights
DICK DURBIN, Illinois, Chairman
AL FRANKEN, Minnesota TED CRUZ, Texas, Ranking Member
CHRISTOPHER A. COONS, Delaware LINDSEY GRAHAM, South Carolina
RICHARD BLUMENTHAL, Connecticut JOHN CORNYN, Texas
MAZIE HIRONO, Hawaii ORRIN G. HATCH, Utah
Joseph Zogby, Democratic Chief Counsel
Scott Keller, Republican Chief Counsel
C O N T E N T S
----------
Tuesday, April 23, 2013, 4 P.M.
STATEMENTS OF COMMITTEE MEMBERS
Page
Cruz, Hon. Ted, a U.S. Senator from the State of Texas........... 4
Durbin, Hon. Dick, a U.S. Senator from the State of Illinois..... 1
prepared statement........................................... 125
Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa,
prepared statement........................................... 129
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement........................................... 127
WITNESSES
Witness List..................................................... 47
Al-Muslimi, Farea, Sana'a, Yemen................................. 15
prepared statement........................................... 117
Bergen, Peter, Director, National Security Studies Program, New
America Foundation, Washington, DC............................. 13
prepared statement........................................... 90
Brooks, Rosa, Professor of Law, Georgetown University Law Center,
Washington, DC................................................. 7
prepared statement........................................... 54
Cartwright, James, General, U.S. Marine Corps, Retired,
Washington, DC................................................. 6
prepared statement........................................... 48
McSally, Martha, Colonel, U.S. Air Force, Retired, Tucson,
Arizona........................................................ 11
prepared statement........................................... 82
Somin, Ilya, Professor of Law, George Mason University School of
Law,
Arlington, Virginia............................................ 9
prepared statement........................................... 74
QUESTIONS
Questions submitted to Peter Bergen by Senator Franken........... 133
Questions submitted to Prof. Rosa Brooks by Senator Durbin....... 131
Questions submitted to Prof. Rosa Brooks by Senator Franken...... 134
Questions submitted to Gen. James Cartwright by Senator Durbin... 132
Questions submitted to Gen. James Cartwright by Senator Franken.. 135
Questions submitted to Col. Martha McSally by Senator Franken.... 136
ANSWERS
Responses of Peter Bergen to questions submitted by Senator
Franken........................................................ 137
Responses of Prof. Rosa Brooks to questions submitted by Senator
Durbin......................................................... 143
Responses of Prof. Rosa Brooks to questions submitted by Senator
Franken........................................................ 147
attachment................................................... 155
Responses of Gen. James Cartwright to questions submitted by
Senator
Durbin......................................................... 139
Responses of Gen. James Cartwright to questions submitted by
Senator Franken................................................ 141
Responses of Col. Martha McSally to questions submitted by
Senator Franken................................................ 191
MISCELLANEOUS SUBMISSIONS FOR THE RECORD
American Civil Liberties Union (ACLU) et al., Washington, DC,
statement...................................................... 329
Amnesty International USA, Washington, DC, statement............. 311
Arab American Institute, Washington, DC, statement............... 309
Bill of Rights Defense Committee (BORDC), April 22, 2013, letter. 193
Bolger, Leah, Commander, U.S. Navy, retired, statement........... 228
Cavallaro, James L., Professor, Stanford Law School, statement... 205
Center for Civilians in Conflict, Washington, DC, statement...... 221
Center for National Security Studies, Washington, DC, March 20,
2013,
memorandum..................................................... 363
Center for National Security Studies, Washington, DC, April 18,
2013,
memorandum..................................................... 372
Chicago Area Peace Action (CAPA), Evanston, Illinois, statement.. 201
Cohn, Marjorie, Professor, San Diego, California, and Jeanne
Mirer, Esq., New York, New York, statement..................... 240
Columbia University School of Law, Human Rights Clinic, New York,
New York, statement............................................ 215
Conference of Major Superiors of Men, Silver Spring, Maryland,
statement...................................................... 237
Constitution Project, The, Washington, DC, statement............. 346
Council on American-Islamic Relations (CAIR), Washington, DC,
statement...................................................... 196
Fields, A. Belden, Professor Emeritus, Urbana, Illinois,
statement...................................................... 236
Friends Committee on National Legislation (FCNL), April 16, 2013,
letter......................................................... 245
Government Accountability Project (GAP), Washington, DC,
statement...................................................... 248
Human Rights First, Washington, DC, statement.................... 274
Human Rights Watch, Washington DC, statement..................... 267
Interfaith Communities United for Justice and Peace (ICUJP), Los
Angeles, California, statement................................. 195
Madden, Mike, and Coleen Rowley, et al., April 16, 2013, letter.. 320
Magness, Rt. Rev. James, Bishop Suffragan, Armed Services and
Federal Ministries, The Episocpal Church, Washington, DC,
statement...................................................... 299
Mothana, Ibrahim, Yemen resident, statement...................... 356
Muslim Public Affairs Council (MPAC), Washington DC, statement... 284
National Organization for Defending Rights and Freedoms (HOOD) et
al., statement................................................. 256
O'Connell, Mary Ellen, statement................................. 337
Paul, Hon. Rand, a U.S. Senator from the State of Kentucky,
statement...................................................... 230
Rafik Hariri Center for the Middle East at the Atlantic Council
and the Project on Middle East Democracy (POMED), Washington,
DC, statement.................................................. 288
Rights Working Group (RWG), Washington DC, statement............. 304
Rutherford Institute, The, Charlottesville, Virginia, statement.. 374
Sojourners, Washington DC, statement............................. 233
Wolff, Stefan, M.Phil., Ph.D., Professor of International
Security, University of Birmingham, England, United Kingdom,
statement...................................................... 290
Wright, Mary A., Honolulu, Hawaii, April 20, 2013, letter........ 282
DRONE WARS: THE CONSTITUTIONAL
AND COUNTERTERRORISM IMPLICATIONS
OF TARGETED KILLING
----------
TUESDAY, APRIL 23, 2013
United States Senate
Subcommittee on the Constitution, Civil Rights and
Human Rights
Committee on the Judiciary
Washington, DC.
The Subcommittee met, pursuant to notice, at 4 p.m., in
Room SH-216, Hart Senate Office Building, Hon. Dick Durbin,
Chairman of the Subcommittee, presiding.
Present: Senators Franken, Blumenthal, Grassley, Graham,
Lee and Cruz.
OPENING STATEMENT OF HON. DICK DURBIN,
A U.S. SENATOR FROM THE STATE OF ILLINOIS
Chairman Durbin. This hearing of the Subcommittee on the
Constitution, Civil Rights and Human Rights will come to order.
Today's hearing is entitled, ``Drone Wars: The
Constitutional and Counterterrorism Implications of Targeted
Killing.'' Senator Cruz is on his way from another hearing, so
I wanted to start on time, but certainly understand there are
just conflicting schedules that we face here.
This is the first ever public hearing in the Senate to
address the use of drones in targeted killing. We are pleased
to have such a large audience for today's hearing. It
demonstrates the importance and timeliness of this issue. Thank
you to those that are here in person, those watching live on C-
SPAN, and those following the hearing on Twitter and Facebook
using the hashtag dronewars.
At the outset I want to note that the rules of the Senate
prohibit outbursts, clapping, or demonstrations of any kind.
Please be mindful of those rules as we conduct this hearing.
There was so much interest in today's hearing, we also have
another larger room to accommodate any overflow crowd. If
anyone could not get a seat in the hearing room, they can go to
Room 226 in Dirksen.
At the outset, I want to thank Senators Leahy and Grassley,
Chairman and Ranking Member of the Senate Judiciary Committee,
for pressing the Justice Department to provide the Committee
with the Justice Department's memos on targeted killing of
Americans.
The Department recently provided these memos to the
Committee. I have had a personal opportunity to review them in
advance of today's hearing. As we will discuss today, this was
a positive step, but I still believe the Justice Department
should provide the Committee with its memos on the targeted
killing of non-Americans as well and make public the legal
analysis contained in those memos without revealing any
intelligence sources or methods.
I would like to take a moment to also acknowledge my
colleague and friend, Congresswoman Barbara Lee of California
who has joined us today. We spoke recently on the phone about
drones and I am aware of her great interest in this issue.
Thank you, Congresswoman Lee, for being here.
I also asked unanimous consent to include in the record a
statement from Senator Rand Paul of Kentucky. During the
filibuster of John Brennan's nomination on the Senate floor, I
invited Senator Paul to testify at today's hearing. He could
not make it because of a conflict, but he has submitted a
written statement and without objection, it will be added to
the record.
[The prepared statement of Senator Paul appears as a
submission for the record.]
Chairman Durbin. I will begin by providing some opening
remarks and then turn to Senator Cruz, thank you for joining
us, for his opening statement before our witnesses.
The Constitution bestows upon the President of the United
States the unique responsibility and title of Commander in
Chief. With that title comes the responsibility to protect and
defend America from foreign and domestic enemies. To accomplish
this goal, the President has a military that is the best in the
world. Best trained, best equipped, and most effective.
While the tactics and tools used by our military are ever-
evolving, one thing must remain constant. Ours is a democratic
society where the rule of law prevails. The President must
exercise his authority as Commander in Chief within the
framework established by the Constitution and the laws passed
by Congress. Even as President Obama commands a military with
the most sophisticated weapons known to man, including
weaponized drones and targeted killing operations, his
authority is grounded in words written more than 200 years ago
in our Constitution.
At times over the course of our history, the rule of law
has been abused during times of war. When this occurs, it
challenges America's moral authority and standing in the world.
This potential for abuse is a stark reminder of Congress'
responsibility to authorize the use of force only in narrow
circumstances and to conduct vigorous oversight once
authorized.
The heat of battle and the instinct to defend can create
moral, legal and constitutional challenges. We can all recall
the controversy surrounding the use of torture in a previous
administration. Torture, though clearly illegal under both
domestic and international law, was rationalized at that time
by some as appropriate in our war against terrorism.
Today's subject, the targeted killing of combatants, in
contrast to torture, has always been part of warfare in areas
of active hostility. In recent years, however, it has been
employed more frequently away from the traditional battlefield.
The use of drones has in stark terms made targeted killing more
efficient and less costly in terms of American blood and
treasure.
There are, however, long-term consequences, especially when
these air strikes kill innocent civilians. That is why many in
the national security community are concerned that we may
undermine our counterterrorism efforts if we do not carefully
measure the benefits and costs of targeted killing.
This administration has not claimed the authority to
override laws like the criminal prohibition on torture.
Instead, the administration has attempted to ground its use of
drones in a statute, the 2001 Congressional Authorization to
Use Military Force. Officials like Attorney General Eric Holder
and CIA Director John Brennan have acknowledged the strikes and
delivered speeches explaining the administration's legal and
policy positions.
In my view, more transparency is needed to maintain the
support of the American people and our international community.
For example, the administration should provide more information
about its analysis of its legal authority to engage in targeted
killing and the internal checks and balances involved in U.S.
drone strikes.
The administration must work with Congress to address a
number of serious, challenging questions, some of which are
being hotly debated even as we meet. What is the constitutional
and statutory justification for targeted killing? What due
process protections extend to an American citizen overseas
before he is targeted and killed by a drone strike? What are
the legal limits on the battlefield in the conflict with Al-
Qaeda? Is it legal to use drones not just in war zones like
Afghanistan, but also to target terrorist suspects in places
where the U.S. is not involved in active combat such as Somalia
and Yemen?
What is the legal definition of a combatant in the conflict
with Al-Qaeda and who qualifies as associated forces under the
2001 AUMF? Should the U.S. lead an effort to create an
international legal regime governing the use of drones? What
moral and legal responsibility does the United States have to
acknowledge its role in targeted killing and make amends for
inadvertent destruction and loss of life, particularly where
missiles kill or injure innocent people?
These are some of the questions that will be explored at
this very serious hearing. Speaking recently about the use of
drones, President Obama said, ``One of the things we have got
to do is put a legal architecture in place and we need
congressional help in order to do that, to make sure that not
only am I reigned in, but any President is reigned in.''
Now, I agree with the President on the need for a clear,
legitimate, and transparent legal framework for targeted
killing. Today is the first step in that process. I do want to
note for the record my disappointment that the administration
declined to provide a witness to testify at today's hearings. I
hope that in future hearings we will have an opportunity to
work with the administration more closely. I will now recognize
my colleague, Senator Cruz, the Ranking Member of this
Subcommittee.
OPENING STATEMENT OF HON. TED CRUZ,
A U.S. SENATOR FROM THE STATE OF TEXAS
Senator Cruz. Thank you, Mr. Chairman. I would like to
begin by thanking the Chairman for holding this hearing on this
very important topic. I would like to thank each of the
witnesses for joining us today, and I would like to echo the
concern that the Chairman raised and the disappointment that
the Obama administration declined to send a witness,
particularly after this hearing was delayed for 1 week in order
to accommodate the administration's schedule. I am hopeful that
they will provide witnesses at subsequent hearings.
Drones are a technology. Like any technology, they can be
used for good purposes or for ill. The real scope I believe of
this hearing, and of the concern, is on the scope of Federal
power, and in particular the scope of Federal power to engage
in targeted killings.
The Obama administration has for some time advocated for a
drastic expansion of Federal power in many, many contexts.
Indeed, on April 9th, I released a report that detailed six
different instances in which the Obama administration has gone
before the U.S. Supreme Court advocating a radically broad view
of Federal power and six different times the U.S. Supreme Court
has unanimously rejected the administration's view of Federal
power and has instead concluded unanimously that Federal power
is more circumscribed than this administration recognizes.
Indeed, Federal overreach is what was at the heart of the
March 6th filibuster led by Senator Rand Paul which I was quite
proud to participate in a significant manner. That day began
with a hearing before this full Committee where Attorney
General Holder testified. At the time, I took the opportunity
to ask Attorney General Holder if he believed the Constitution
allowed the U.S. Government to use a drone to kill a U.S.
citizen on U.S. soil if that individual did not pose an
imminent threat.
The Attorney General declined to answer my question as
initially posed and instead he responded that he did not
believe it would be appropriate to use a drone to do so. He
said, and I paraphrase here, that we should rest confident that
in their discretion, the administration would not choose to do
so.
My response of course was that the question was not a
question about propriety. It was a question addressed to the
chief legal officer of the United States asking whether the
United States Department of Justice had a legal position on
whether the Constitution allows the Federal Government to kill
a U.S. citizen on U.S. soil if that individual does not pose an
imminent threat.
Three times I posed that question to General Holder, three
times he declined to answer and simply stated it would be
appropriate, but he would not say whether or not it would be
constitutional.
Finally after the third time, he went back and said that
when he said inappropriate, what he meant was unconstitutional.
That exchange served later as the predicate for the 13-hour
filibuster that occurred as first Senator Rand Paul and then
one Senator after another after another came to the floor of
the Senate to insist on basic constitutional limits on the
authority of the Federal Government.
Let me be clear. The authority of the Federal Government
and the protection of the Constitution should not be a partisan
matter. The statement from the Attorney General that we should
trust the Federal Government to do what is appropriate, in my
view the Bill of Rights is predicated on the notion that we do
not trust those in power, be they Democrats or Republicans,
that the Bill of Rights exists to protect our liberties
regardless of who happens to be in power.
That 13-hour filibuster did something remarkable. During
the course of it, Americans became fixated by C-SPAN. Now, I
would suggest fixated by C-SPAN is not a phrase that exists
ordinarily in the English language. But we saw thousands upon
thousands of Americans go on Twitter, go on Facebook, begin
speaking out for liberty, for limiting the authority of the
Federal Government to take the life of U.S. citizens on U.S.
soil.
As a consequence of standing for principle, we saw the next
day the administration do what it had declined to do for many
weeks, which is acknowledge in writing that the Constitution
does not allow a U.S. citizen to be killed in those
circumstances. In my view, we need greater protections than
simply a letter from the administration and I am hopeful that
Congress will pass legislation making very clear the limits on
Federal power and I hope that this panel of witnesses will
share your wisdom and expertise on the appropriate boundaries
under the Constitution and the appropriate statutory boundaries
that Congress should consider. Thank you.
Chairman Durbin. Thank you, Senator Cruz. We are going to
turn to our panel of witnesses. At the outset I want to thank
Senator Cruz and his staff for working with me and my staff to
develop a witness list for today's hearing. You will hear a
wide range of different points of view in the course of the
testimony.
Now in keeping with the practice of the Committee, will the
witnesses please rise and raise their right hands to be sworn?
Do you swear or affirm the testimony you are about to give
before the Subcommittee will be the truth, the whole truth and
nothing but the truth so help you God? Thank you.
Let the record reflect that the witnesses, all six, have
answered in the affirmative.
The first witness will be retired General James Cartwright.
General Cartwright currently serves as the Harold Brown Chair
in Defense Policy Studies at the Center for Strategic and
International Studies. General Cartwright retired from active
duty on September 1st, 2011, after a 40-year career in the U.S.
Marine Corps.
Among many other positions, he served under two Presidents
as Vice Chairman of the Joint Chiefs of Staff, the Nation's
second highest military officer. He was also Commander of the
U.S. Strategic Command. General Cartwright studied at the
University of Iowa, the Air Command and Staff College, the
Naval War College, and the Massachusetts Institute of
Technology, and I note with pride he is a native of Rockford,
Illinois.
General Cartwright, thank you for your service to our
country and thank you for joining us today. Your written
statement will be entered into the record and now your
opportunity to testify, please.
STATEMENT OF GENERAL JAMES CARTWRIGHT,
U.S. MARINE CORPS, RETIRED, WASHINGTON, DC
General Cartwright. Thank you, Senator Durbin and Senator
Cruz and other distinguished Members. It is an honor and a
pleasure to testify before this Committee. Thank you for
inviting me.
In the time allotted, I would like to address three
questions central to the topic of this hearing. The first, Are
we to continue with policies of the global war on terror as
they relate to targeted killings and the use of armed, remotely
piloted aircraft? That is, number one, defeat terrorists and
demolish their organizations.
Number two, identify, locate, and demolish terrorists along
with their organizations. Three, deny sponsorship, support, and
sanctuary to terrorists. Four, diminish the underlying
conditions that terrorists seek to exploit. Fifth, defend U.S.
citizens and interests at home and abroad under both the
domestic and international law regarding national self defense.
I support this mission and policy.
Second, under what authority and accountability framework,
when operating outside the United States, are we to operate?
Intelligence, often referred to as Title 50 in covert
activities, military, often referred to as Title 10 in
clandestine activities, law enforcement, usually on the outside
by the FBI, or some other framework.
Is the framework robust enough in this mission area to
provide appropriate direction, oversight, and accountability?
The DOD framework requires written orders from the National
Command Authority, Secretary of Defense, and the President to
each person in the chain of operation and accountability. Who,
what, when, where, what capabilities, what restraints and what
types of collateral damage, what to do if there is collateral
damage, required metrics and after action reports, et cetera.
This direction is provided in the mission statement and
objectives, warning orders to begin detailed planning,
preparation to deploy orders to move to a point of embarkation,
deployment orders to move to the objective and execute orders
to conduct the operation.
I could support consolidation of the armed, remotely
piloted aircraft under DOD, a question that was asked of me,
only if there are fundamental changes in how DOD trains and
equips for this mission. I believe each of the authority and
the accountability constructs, intel, military, and Justice,
should remain available to the President, adjusted to ensure
that they are effective for this particular mission.
Last, under what conditions are armed, remotely piloted
aircraft an appropriate capability to carry out this mission?
In this campaign, the U.S. has employed bombers, attack
aircraft, cruise missiles, and special operation forces in
various scenarios. Improvements in technology and emergence of
armed, remotely piloted aircraft have provided a significant
improvement in our ability to find, fix, and target in this
mission area. They are not perfect, they can be improved.
No other capability we have today is better suited though
to conduct this mission under the guidelines provided.
Improvements in sensors and weapons that increase better
identification of authorized targets and weapons that reduce
the potential for collateral damage should be pursued.
Finally, and in summary, my recommendations to the
Committee. One, review and address as appropriate the framework
for direction, oversight, and accountability, and I have a long
piece on this inside of my written testimony.
If it is to be a covert mission, it should be conducted by
the intelligence community. If it is to be a clandestine
mission, it should be conducted by the military and the train
and equip authorities will need to be adjusted. Improve the
remotely piloted aircraft and weapon systems used in this
mission area to better align their capabilities for the desired
effect.
I am concerned we may have ceded some of our moral high
ground in this endeavor. While I continue to support the
objectives of this campaign, I commend to the Committee for its
consideration the recommendations in my written and oral
statements. Thank you, Mr. Chairman.
[The prepared statement of General Cartwright appears as a
submission for the record.]
Chairman Durbin. Thank you very much, General Cartwright.
Our next witness is Professor Rosa Brooks of Georgetown
University Law Center.
In addition to teaching law, Professor Brooks is a Senior
Fellow at the New America Foundation and a weekly columnist on
national security issues for Foreign Policy Magazine.
Previously Professor Brooks served as counselor to the Under
Secretary of Defense for Policy where she founded the Defense
Department's Office for Rule of Law and International
Humanitarian Policy.
She is a graduate of Harvard University, Oxford University,
where she was a Marshall Scholar, and Yale Law School.
Professor Brooks, the floor is yours.
STATEMENT OF ROSA BROOKS, PROFESSOR OF LAW, GEORGETOWN
UNIVERSITY LAW CENTER, WASHINGTON, DC
Professor Brooks. Thank you, Senator. I submitted 20 pages
of written testimony, but much like C-SPAN, people do not
usually refer to what law professors write as riveting. So I am
going to condense that 20 pages into 5 minutes here and focus
almost exclusively on the broader rule of law issues that I
believe are raised not by drones as such, but by U.S. targeted
killing policy.
In the context of the traditional battlefield, drones do
not present any new legal or rule of law issues. It is in the
context of places such as Somalia, Yemen, et cetera, outside of
traditional so-called hot battlefields that we were suddenly
presented with significant problems, to the point in which the
use of U.S. targeted killing policy as currently understood
appears to both challenge the legal frameworks that exist and
potentially dangerously undermine the rule of law. This is not
because of some conspiracy or lack of concern, but because we
are faced with a situation where the fit between the law and
the legal frameworks we have and the situation on the ground is
not very good anymore.
The idea of the rule of law, as you and Senator Cruz both
said, is to protect people from the arbitrary exercise of
government power. In ordinary circumstances we all know that
that means the government cannot come and take your property or
your liberty or kill you without some sort of due process.
Similarly, we believe that the government cannot use force to
kill someone in the borders of another state without that
state's consent and without appropriate judicial process.
Obviously there are situations where ordinary rules do not
apply, such as in wars. In the context of wars or armed
conflicts, the law of armed conflict tells us that it is
acceptable to kill, whether by slingshot, gun, or drone.
The problem here is that we have two different bodies of
law which have radically different rules concerning due process
and the use of force by the state. In the law we call this the
lex specialis and the lex generalis. Lex specialis is a fancy
Latin term that refers to special law applying only in special
circumstances, in this case armed conflicts, law of armed
conflict. Lex generalis is the general law that applies in
general circumstances, ordinary peace time.
It is not necessarily a problem to have two radically
different sets of rules that apply in different situations. It
is not necessarily a problem as long as we are pretty clear on
how we know the difference between when one set of rules
applies and when the other set of rules applies.
On the traditional battlefield, it is pretty clear. You
have uniformed soldiers, you have open acknowledgment of the
armed conflict, you can have objective observers such as
journalists saying yes, it looks like there is a large scale
armed conflict here.
On the other hand, once we get off that traditional
battlefield, when we are looking at an inchoate protean enemy
such as geographically disbursed globalized terrorist
organizations, it becomes very, very hard to say, ``here is
where the armed conflict is, here is where the armed conflict
is not; here is who is a combatant, here is who is not a
combatant.'' All of those legal frameworks just start breaking
down.
The problem that we now have is that nobody outside a very
small group within the U.S. executive branch knows how we are
making those decisions about who is a combatant, where is the
war, et cetera. It is not like World War II. Also, the
information and the process are classified, so it is just very,
very hard to get a grip on what the basis is for making any
decisions.
That means that all of our core rule of law questions in
which we figure out how we even know what body of law applies
are unanswered. What is the criteria for determining who is a
combatant or who is an affiliate of Al-Qaeda? What does that
mean? Where is the war? Does law of armed conflict travel
anywhere a combatant travels, making it applicable anywhere?
What about sovereignty issues? Does it matter if the state does
not consent? Who decides if a state is unwilling or unable to
take appropriate action?
Who in the U.S. executive branch makes the decisions? What
is the chain of command? What are the mechanisms for ensuring
that we prevent abuses?
This is a deep problem, as I said. I do not think this is a
problem of lack of good faith on the part of officials. This is
just a problem when we have a concept like armed conflict: If
it gets squishy enough that we can use that same term to talk
about World War II and what is going on right now with regard
to Al-Qaeda and its affiliate, frankly that is a term that is
not doing a lot of useful work anymore.
What it means in practice is that we just lose any
principle means of categorizing a targeted killing. Should we
call them lawful targeting of combatants? Lawful under the law
of war? No problem, if that is the case. Or should we call them
murder, extra-judicial killings, as many human rights groups
have asserted? We do not have a principle basis for deciding
anymore.
I also worry very much about the precedent we are setting
for other less scrupulous states such as Russia, China, et
cetera. I can talk about all of this in much more detail and
would be happy to during the question period. I think what it
comes down to, Senator Durbin and Senator Cruz, is that right
now we have the executive branch making a claim that it has the
right to kill anyone anywhere on earth at any time for secret
reasons based on secret evidence in a secret process undertaken
by unidentified officials.
That frightens me. I do not doubt their good faith, but
that is not the rule of law as we know it. In my statement
submitted for the record, I do suggest a number of reforms that
might improve our ability to ensure oversight and
accountability. I do not have time to discuss them now, but I
very much hope that we will address those issues later.
I will just leave you with this final thought, which is
that I believe that it is absolutely possible to make a
plausible, legal argument justifying each and every U.S. drone
strike. But to me, this just suggests that we are working with
a set of legal concepts that have outlived their usefulness.
If law exists to restrain untrammeled power, then the real
question for us is not whether U.S. targeted killings are all
legal, the real question is this: Do we want to live in a world
in which the U.S. Government's justification for killing is so
infinitely malleable?
Thank you very much.
[The prepared statement of Professor Brooks appears as a
submission for the record.]
Chairman Durbin. Thank you, Professor Brooks.
Professor Ilya Somin, did I pronounce that correctly?
Somin, is at the George Mason Law School. Make sure your
microphone is on, you will see a red light if it is.
Professor Somin's research focuses on constitutional law,
property law, and popular political participation. He is co-
editor of the Supreme Court Economic Review. Previously, he
served as the John Olin Fellow in Law at the Northwestern
University Law School. He earned a B.A. at Amherst College, an
M.A. in Political Science from Harvard, and a J.D. from Yale
Law School.
Please proceed with your testimony.
STATEMENT OF ILYA SOMIN, PROFESSOR OF LAW, GEORGE MASON
UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA
Professor Somin. I would like to start by thanking Chairman
Durbin and Senator Cruz and the other Members of the Committee
for your interest in this important issue. In my testimony I
would like to focus on two key points.
First, that the use of drones for targeted killing in the
war on terror is not in and of itself illegal or immoral. But
second, that there are serious legal and policy issues that
arise from the problem of ensuring that we are actually
choosing the right targets and confining these drone strikes to
people who really are terrorist leaders or at least terrorists
of some kind as opposed to innocent people unduly caught in the
crossfire.
By its very nature, in a war, targeted killing in my view
is a legitimate tactic and the current conflict between the
United States and Al-Qaeda and its affiliates is a war
authorized by the Authorization for the Use of Military Force
enacted in 2001. At various times, the President, Congress, and
the Supreme Court have all recognized that the current conflict
qualifies as a war. Certainly in many past wars, combatants
have legitimately resorted to targeted killing. For example,
during World War II, the United States targeted Japanese
Admiral Yamamoto and virtually everybody agrees that that was
an entirely legitimate military operation.
If it is legal and morally permissible to use targeted
killing against uniformed military officers, surely the same
applies to terrorists and terrorist leaders. It would be
perverse if terrorists obtained greater immunity from targeting
than that enjoyed by uniformed military officers who at least
pretend to obey the laws of war whereas the terrorists clearly
do not.
In addition, I think it is not inherently illegal or
problematic to target American citizens in such situations so
long as those American citizens are also combatants in the
relevant war. The Supreme Court in the 2004 Hamdi decision and
at other times has recognized that sometimes U.S. citizens do
qualify as enemy combatants.
Although the use of targeted killing, whether by drones or
with other weapons is not inherently illegal or unethical, the
problem of choosing targets does raise some very serious
issues. In the war on terror, we face an adversary that
generally does not wear uniforms and also often does not have a
clear command structure. Therefore it is often difficult to
tell who is a legitimate target and who is not. This state of
affairs raises two possible problems.
First, sometimes we might inadvertently or recklessly
target an innocent person. Second and worse, the possibility
exists that the government could deliberately target someone
who is innocent because perhaps they are a critic of the
government or they otherwise attract the ire of leading
government officials.
This is particularly problematic from a constitutional
point of view if there is abusive targeting of an American
citizen. Doing that would violate the due process clause of the
Fifth Amendment which prevents the government from depriving
people of life, liberty or property without due process of law.
Two aspects of current policy raise serious questions about
whether we are doing enough to ensure that we are choosing only
legitimate targets. One is the sheer number of targeted
killings over the last several years, which includes hundreds
or even thousands of people. Studies by various people
including Mr. Bergen, who will testify later, suggest that only
a small percentage of those individuals who are killed actually
were senior Al-Qaeda leaders.
Second, the Department of Justice memo released a couple of
months ago states that it is permissible to target American
citizens who are senior operational leaders of Al-Qaeda and who
pose an imminent threat, but it does not say anything about how
much evidence we need to have before we can determine that
someone really is a senior Al-Qaeda leader or even which
officials get to make that decision.
In my written testimony, I discuss in more detail some
possible institutional solutions to these problems. One that I
think deserves serious consideration is the establishment of an
independent court to review potential targeted killing
objectives and to ensure that they are backed by sufficient
evidence. It could perhaps be similar to the court currently
used to authorize surveillance and wiretapping within the
United States.
Whatever solution we opt for, it is probably not possible
to have a perfect system that avoids all mistakes. What we
should aim for is a system that on the one hand permits
legitimate military operations to go forward, but also provides
a check on what might otherwise be the uncontrolled and
arbitrary power of the executive to order killings,
particularly those targeted at U.S. citizens.
I thank the Subcommittee and I very much look forward to
your questions.
Thank you very much.
[The prepared statement of Professor Somin appears as a
submission for the record.]
Chairman Durbin. Thank you, Professor.
We will now hear from Colonel Martha McSally. She served as
an officer in the U.S. Air Force for 22 years. She was the
first woman in U.S. history to fly a fighter jet and command a
fighter squadron in combat. She earned a bronze star among many
other honors.
Colonel McSally served as the Chief of Current Operations
in Africa where she helped build Africom's targeting team. She
was assigned to the Saudi Arabia Air Operations Center when the
predator drone was first used for reconnaissance and air
strikes.
Colonel McSally also served as a Legislative Fellow with
our former colleague, Senator John Kyl. Colonel McSally holds
degrees from the Air Force Academy, the Kennedy School of
Government at Harvard, and the Air War College. She was added
to the panel at the request of our friend and colleague,
Senator Lindsey Graham.
Colonel McSally, thank you for serving our country and the
floor is yours.
STATEMENT OF COLONEL MARTHA McSALLY,
U.S. AIR FORCE, RETIRED, TUCSON, ARIZONA
Colonel McSally. Thank you, Mr. Chairman, Ranking Member
Cruz, and the distinguished Members of the Subcommittee.
I come to you today from an operational point of view and I
will speak in generalities at the unclassified level from my
military experience related to the use of remotely piloted
aircraft for targeted killings.
I use the term remotely piloted aircraft, which is my first
point, instead of drones because I think that is actually part
of the challenge. There is an information operations campaign
by Al-Qaeda going on against us and the word drone actually has
a connotation that we have got these autonomous vehicles flying
around and striking at will without a whole lot of scrutiny and
oversight to them.
The military does use the term remotely piloted aircraft to
explain and to try and paint the picture that it actually takes
about 200 individuals to keep one of these aircraft airborne
for a 24-hour orbit. Those 200 individuals include the
operators, the intelligence personnel, the maintenance
personnel, the equipment people, the lawyers are also part of
the process. You have literally hundreds of other personnel
that are involved in the process on the military side when you
are actually conducting one of these operations. So I will be
using the term RPA throughout my testimony, and that certainly
is one of the points to make.
In my written testimony, I explain that I think this issue
is very important and there are very legitimate questions that
need to be asked for the oversight roles that we have, as when
we are choosing if it is legal to use lethal force for targeted
killings and if it is a good counterterrorism strategy to use
that force.
Those questions are legitimate and need to be asked and
that oversight has got to be tightened up. There has been way
too much, I think, vagueness and lack of clarity, even in the
information that has come out of the chain of command related
to their legal argument and their strategy on that matter.
I believe it should be separated though into three
questions. Is it legal? Is it good strategy? Then the third
question is if we have decided that we want to use lethal
force, because it is legal and good strategy in the
counterterrorism arena, then what platform should we use?
So I will be focusing on discussing that platform and then
the process that we go through. It would be surprising to you,
perhaps, that a pilot would be advocating for the use of
remotely piloted aircraft in order to conduct operations. But
in the course of my 22 years in the military, I have
extensively worked with remotely piloted aircraft for a variety
of different means, and when we are on the regular battlefield,
you often have a Lieutenant Pilot and an Airman First Class on
the ground making decisions to use lethal force with potential
strategic consequences.
If they hit the wrong target and there is collateral
damage, then there is a great level of potential issues related
to that wrong decision.
When you are talking about the use of remotely piloted
aircraft, you have what I believe is unprecedented level of
persistence, oversight, and precision if you are choosing to
use that as a platform. Your other choices are fighter
aircraft, cruise missiles, SEALS, artillery, and other means of
using lethal force. But when you are using remotely piloted
aircraft, oftentimes because the number of issues that have to
come together and line up to include positive identification,
geographic location, collateral damage assessment, friendly
force deconfliction, and other communications that need to
happen, it is often not practical because the targets are
fleeting to use any of these other assets.
As an example, you would not want to have to wait and then
launch fighters from a certain base, air refueling tankers,
diplomatic clearances, all while these stars are all lining up
in a very fleeting moment that could basically those conditions
could not be met in the next moment. So if you have a remotely
piloted aircraft overhead, as those conditions are lining up,
the process actually has a great deal of extraordinary
scrutiny.
You have the chain of command watching, you have the
intelligent analysts watching, you actually have the lawyers
sitting side by side with you and you can wait until the moment
that you have identified the positive identification and all
the criteria has been met and you can also abort at the last
minute. If you launch a cruise missile for a lethal strike,
there is usually 30 minutes of planning, 30 minutes time of
flight and then oftentimes you cannot divert that missile as an
example.
So a remotely piloted aircraft actually gives us the
highest level of scrutiny and oversight and persistence and
precision if you are deciding to have a lethal strike. I look
forward to the questions and the discussion on this matter and
also at the unclassified level the process that we go through
in the military to achieve the different criteria before we are
actually cleared for those strikes.
[The prepared statement of Colonel McSally appears as a
submission for the record.]
Chairman Durbin. Thank you, Colonel McSally.
Our next witness is Peter Bergen. Mr. Bergen is Director of
the National Security Studies Program with the New America
Foundation. He is a best-selling author and widely publicized
journalist.
Mr. Bergen is CNN's National Security Analyst and a Fellow
at Fordham University Center on National Security. He has
worked as an adjunct lecturer at Harvard's Kennedy School of
Government and as an adjunct professor at the Johns Hopkins
University School of Advanced International Studies. He holds
an M.A. from New College at Oxford University.
Mr. Bergen, please proceed.
STATEMENT OF PETER BERGEN, DIRECTOR, NATIONAL SECURITY STUDIES
PROGRAM, NEW AMERICA FOUNDATION, WASHINGTON, DC
Mr. Bergen. Thank you, Mr. Chairman and Senator Cruz and
the other Members of the Committee for the privilege of
testifying.
We at the New America Foundation basically are collecting
data on CIA drone strikes for the past 3 or 4 years. I am not a
lawyer, so my presentation will really be about what has been
happening in the drone program.
Here are some of the main points. Under President Obama,
there has been 307 drone strikes in Pakistan. That is six times
more than President Bush did in his two terms in office. The
total number of deaths in Pakistan we calculate somewhere
between 2,000 to 3,300 roughly.
The drone program in Pakistan has changed. In 2010 there
were 122 drone strikes, over time it has decreased. That is for
a series of reasons. There has been a significant pushback from
the State Department about, are we losing the wider war in
Pakistan in a sense? If the price of a successful drone program
is angering 180 million Pakistanis, one of the largest
countries in the world, a country with nuclear weapons, that is
quite a large price to pay.
I think that there has been a more discriminating program
in Pakistan as a result of this discussion. The CIA still has
the ability to more or less override State Department
objections, but I think the larger discussion has been won by
the State Department. Also there is an increasing Congressional
oversight, there is more public discussion as there is in this
forum. Supreme Court Justice Brandeis a long time ago said
sunlight is the best disinfectant and I am really thankful that
we are having this public discussion.
There are a whole series of reasons the CIA drone base in
Balochistan was closed. There are probably fewer targets in the
tribal regions to actually kill, and so you have seen a decline
in Pakistan. At the same time, and we will hear from the
witness to my left in a minute about the drone program in
Yemen.
There was only one drone strike in Yemen under President
George W. Bush, there were 46 last year under President Obama.
We calculate there were somewhere between 467 and 674
casualities. All but six of those took place under President
Obama.
Who are the targets? As Professor Somin indicated, militant
leaders are not really being killed in any great number. We
calculate that only 2 percent of the total number of casualties
are actually people you could really term leaders.
That is an interesting development. What was initially
started, I think, as a program that would target high level
members of Al-Qaeda has in a sense devolved, particularly in
Pakistan, into a kind of counterinsurgency air force and you
can say that is a good thing or a bad thing, but it is a fact
that that is happening.
Where are the targets in Pakistan? They are overwhelmingly
in North Waziristan for obvious reasons, that is where Al-Qaeda
and the Haqqani Network are basically located.
What of the civilian casualty rate? We have found that it
has declined very significantly over time. Initially in 2006,
it was almost 100 percent. Now today confirmed civilian
casualties we calculate about 2 percent. We also added an
unknown category of 9 percent because sometimes it is not clear
if somebody is a civilian or a militant. After all, everybody
dresses the same, and somebody that is referred to in a press
account as a tribesman could be either a Taliban or a civilian.
We are finding a very significant decrease in the number of
civilian casualties. There are all sorts of reasons for that. I
think one is drones are persistent, as Colonel McSally pointed
out. There are smaller payloads, there is better intelligence.
President Obama is taking a more direct role in adjudicating
potential strikes where there might be a civilian casualty. So
we have seen a very strong drop, but there are still civilian
casualties.
We are not the only group that looks at this issue. There
is the Long War Journal and London-based Bureau for
Investigative Journalism, but we are all finding roughly the
same thing, that the civilian casualty rate in 2012 is quite
low.
Ben Emmerson, who is a United Nations Special Rapporteur on
this issue, went to Pakistan recently and had a very
interesting discussion with Pakistani lawmakers and officials.
They said to him that there were 400 civilian casualties in
Pakistan, which is pretty close to the number that we actually
think is correct, and this is the first sort of official
acknowledgment in Pakistan, at least on background that the
civilian casualty rate is much lower than is presented in the
Pakistani press.
What impact is this having on Al-Qaeda and the Taliban? The
best witness for the impact on Al-Qaeda is Osama Bin Laden
himself. In the documents recovered in Abbottabad, he was very
concerned about the drone program. With the amount of damage it
was inflicting on his group, he was suggesting that Al-Qaeda
should decamp to Kunar in Eastern Afghanistan which is heavily
forested and mountainous and it would be hard for American
drones to see what is going on.
He even suggested his son should move to Qatar, the richest
and one of the safest countries in the world, away from the
tribal regions. So we are seeing that it is having an impact
and just to reinforce what Rosa Brooks said, the precedents we
are setting clearly are worrisome, potentially.
Eighty countries have drones, three of them have armed
drones that we know of. The Chinese are very close to being
able to arm their drones. You could easily imagine a situation
where China deploys drones against Uighur separatists, for
instance, using essentially the same rationale that we have
used against Al-Qaeda or the Taliban who we deem to be
terrorists.
[The prepared statement of Mr. Bergen appears as a
submission for the record.]
Chairman Durbin. Thank you very much, Mr. Bergen.
Our last witness on the panel has certainly made a personal
sacrifice to be with us. Farea Al-Muslimi is a Yemeni youth
activist, writer, and freelance journalist. He has co-founded
and chaired several local youth initiatives in Yemen. He
currently works for Resonate! Yemen, a grassroots, youth-run
foundation aimed at constructively engaging Yemeni youth in
public policy dialogue.
With the assistance of a U.S. State Department scholarship,
Farea studied in the U.S. during high school. He attended the
American University of Beirut and graduated with a degree in
Public Policy from that institution last year. Mr. Al-Muslimi,
I hope I pronounced your name close to correct, thank you for
traveling from Yemen to join us today. I am looking forward to
your testimony.
Please proceed.
STATEMENT OF FAREA AL-MUSLIMI, SANA'A, YEMEN
Mr. Al-Muslimi. Thank you, Chairman Durbin and Ranking
Member Cruz for inviting me here today. My name, as you
mentioned, is Farea Al-Muslimi and I am from Wessab, a remote
village mountain in Yemen.
Just 6 days ago my village was struck by an American drone
in an attack that terrified the region's bull farmers. Wessab
is my village, but America has helped me grow up and become
what I am today. I come from a family that lives off the fruit,
vegetables, and livestock we raise on our farms.
My father's income rarely exceeded $200. He learned to read
late in his life and my mother never did. My life, however, has
been different. I am who I am today because the U.S. State
Department supported my education.
I spent a year living with an American family and I
attended an American high school. That was one of the best
years of my life. I learned about American culture, managed the
school basketball team, and participated in trick or treat at
Halloween.
But the most exceptional experience was coming to know
someone who ended up being like a father to me. It was a member
of the U.S. Air Force. Most of my year was spent with him and
his family. He came to the mosque with me and I went to church
with him and he became my best friend in America.
I went to the U.S. as an ambassador for Yemen and I came
back to Yemen as an ambassador of the U.S. I could never have
imagined that the same hand that changed my life and took it
from miserable to a promising one would also drone my village.
My understanding is that a man named Hammed Al-Radmi was
the target of the drone strike. Many people in Wessab know Al-
Radmi and the Yemeni government could easily have found and
arrested him. Radmi was well known to government officials and
even to local government, and even local government could have
captured him if the U.S. had told them to do so.
In the past, what Wessab villagers knew of the U.S. was
based on my stories about my wonderful experiences here. The
friendships and values I experienced and described to the
villagers helped them understand the America that I know and
that I love.
Now, however, when they think of America, they think of the
terror they feel from the drones that hover over their heads
ready to fire missiles at any time. What the violent militants
had previously failed to achieve, one drone strike accomplished
in an instant. There is now an intense anger against America in
Wessab.
This is not an isolated instance. The drone strikes are the
face of America to many Yemenis. I have spoken to many victims
of U.S. drone strikes like a mother in Jaar who had to identify
her innocent 18-year-old son's body through a video in a
stranger's cell phone, or the father in Shaqra who held his 4-
and 6-year-old children as they died in his arms.
Recently in Aden I spoke with one of the tribal leaders
present in 2009 at the place where the U.S. cruise missiles
targeted the village of Al-Majalah and Lawdar, Abyan. More than
40 civilians were killed, including four pregnant women. The
tribal leader and others tried to rescue the victims, but the
bodies were so decimated that it was impossible to
differentiate between those of children, women, and their
animals.
Some of these innocent people were buried in the same grave
as their animals. In my written testimony I provided detail
about the human cost of this and other drone strikes based on
interviews I have conducted or have been part of.
I have a personal experience of the fear they cause. Late
last year I was in Abyan with an American journalist colleague.
Suddenly I heard the buzz. The local people we were
interviewing told us that based on their past experiences, the
thing hovering above us was an American drone. My heart sank. I
felt helpless. It was the first time that I had truly feared
for my life or for an American friend's life in Yemen.
I could not help but think that the drone operator just
might be my American friend with whom I had the warmest and
deepest relationship. I was torn between this great country
that I love and the drone above my head that could not
differentiate between me and some AQAP militants. It was one of
the most divisive and difficult feelings I have ever
encountered. I felt that way when my village was also droned.
Thank you for having this hearing. I believe in America and
I deeply believe that when Americans truly know about how much
pain and suffering the U.S. air strikes have caused and how
much they are harming efforts to win hearts, minds, and grounds
in Yemen and hearts and minds of the Yemeni people, they will
reject this devastating targeted killing program. Thank you.
[The prepared statement of Mr. Al-Muslimi appears as a
submission for the record.]
Chairman Durbin. Thank you, sir.
General Cartwright, in a recent speech before the Chicago
Council on Global Affairs, you noted your concerns about
potential reaction to targeted strikes. In that speech you said
if you are trying to kill your way to a solution, no matter how
precise you are, you are going to upset people even if they are
not targeted.
General Stanley McChrystal has also stated that the
resentment created by American use of unmanned strikes is much
greater than the average American appreciates. Mr. Al-Muslimi's
testimony provides a chilling example of how these strikes can
undermine our efforts to win the hearts and minds of the very
people we are relying on to provide us intelligence and
ultimately be our allies.
Are we trading short-term tactical success of killing
individual targets for the long-term strategic failure by
sowing widespread discontent and anger?
General Cartwright. Senator, I cannot talk to specific
operations.
Chairman Durbin. I understand.
General Cartwright. But I am worried that we have lost the
moral high ground for many of the reasons that the witnesses
have talked about, and that some element of transparency in
process, in decisionmaking, in the understanding not just of
those who actually make decisions, but of the people of this
country and the people of the countries that we are working in
is going to be essential to find our way back to that moral
high ground.
I believe that if people understand what the options are
and the choices are and that they are reviewed and they are
basically, as we do in our judicial system, in an adversarial
way looked at with a very jaundiced eye about whether we want
to proceed or not to proceed, that we can move in a direction
that is far better than where we are today.
But I believe that in several areas around the world, the
current drone policies have left us in a position where we are
engendering more problems than we are solving.
Chairman Durbin. Wouldn't you also, I am sure, acknowledge
that because of the classified nature of information that is
being used to target and protecting the sources and methods
which we are using to find that information makes transparency
if not challenging, impossible?
General Cartwright. I would say challenging but not
impossible. In other words, it is not necessary to provide the
secret sauce to provide an understanding of why you are doing
what you are doing, how you are making the decisions and why
they are necessary and that you have reviewed alternative
choices in that decision process. I think that is the important
part to get out.
I do not disagree that again, as I said in my testimony,
that the policy that we are following in the global war on
terrorism is a policy that I support, but it is the means and
the methods here that I think we have to take a look at and
seriously reflect on.
Chairman Durbin. Professor Brooks, I am just looking down
the panel to see who might have been here in 2001 to cast the
vote on the Authorization for the Use of Military Force.
I can remember there were two votes. One relative to the
invasion of Iraq and 23 of us voted in the negative. And then
the second vote which we considered to be the direct answer to
9/11 for the invasion of Afghanistan, the direct assault on Al-
Qaeda. Virtually all Members of the Senate voted in favor, and
I believe all of them did if I am not mistaken.
At the time though I do not think there is a single Senator
who would say that they envisioned 12 years later that we would
be ending the longest war in our history and that we had
created an authorization for an ongoing war-like effort against
Al-Qaeda operatives and their associates.
I guess my question to you is whether or not the AUMF, the
Authorization for Use of Military Force, is adequate to the
task of protecting America when we are still menaced and
terrorized by those who would do us evil and whether or not
there needs to be a revisit of that AUMF to determine whether
it should be stronger or more specific.
Professor Brooks. Senator Durbin, I would be inclined to
urge Congress to repeal the 2001 AUMF. I think that the
President already has ample power as the Commander in Chief and
as the Chief Executive of the United States to use military
force when it is necessary to protect the United States from an
imminent threat and imminent and grave threat.
But I would emphasize the words imminent and grave. I think
that in the absence of an Authorization to Use Military Force,
we would very likely see the executive branch perceive itself
as constrained to do a more careful analysis of the importance
of using military force, particularly in context where it is a
targeted killing in a foreign country which raises sovereignty
issues among other things.
I share my colleague's view that there is nothing
inherently wrong about the use of targeted killing as a
counterterrorism tool or in the context of armed conflicts, but
I do think that we have gotten well beyond, as you suggest,
what the drafters of the AUMF and those who voted for it could
ever have imagined. We have stretched it from Al-Qaeda and from
the actual language of the authorization which focused very
squarely on those with responsibility in some way for 9/11 and
on preventing future attacks such as that on the United States.
We have begun to shift, as my colleagues have said, to those
who you might say are further and further down the terrorist
food chain, not so much senior operatives, but lower level
militants and suspected militants.
We have also shifted to focusing on organizations that
would not necessarily fit that AUMF definition, such as
Somalia's Al-Shabaab. It is not that clear that they would fit
the definition in terms of either any link to the 9/11 attacks
or in terms of any capability, capacity, and inclination to
focus on the United States.
Chairman Durbin. I guess what I am driving at is this. I
think the definition of our enemy in that AUMF, as Al-Qaeda and
associates, could certainly be challenged today in terms of
terrorism threats to the United States. I think some have gone
far afield from the original Al-Qaeda threat, but there are
still realistic threats. So the definition of our enemy, our
enemy combatant, would have to be carefully considered in that
context.
Second, I would think that we now are challenged to define
the battlefield and where we can engage in targeted killing and
what it takes to authorize us to go into Somalia, Yemen,
Pakistan, Afghanistan or nations in Africa.
Where is that battlefield? It seems like it can change
almost on a daily basis and still be a threat to the United
States.
I would say having been through this debate--my time is
about up here. Having been through this debate in the House and
the Senate over the authority and responsibility of Congress to
declare war on behalf of the American people that I do not
think our founding fathers in their wisdom could have
envisioned quite what we are facing today in trying to keep
this country safe.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. I would like to take
the opportunity to welcome and thank Senator Grassley who is
the Ranking Member on the Full Committee for joining us at this
important Subcommittee hearing and with unanimous consent, I
would like to offer Senator Grassley the opportunity to ask his
questions before I ask mine----
Senator Grassley. I will wait my turn. Go ahead.
Senator Cruz. Very well. Thank you and welcome, Senator
Grassley.
I appreciate each of the witnesses coming here and for
presenting very learned and very provocative testimony on this
critical issue. I would like to begin by posing to each of you
the hypothetical that I posed to Attorney General Holder,
because it seems to me on the question of what is the
permissible use of legal force there are ends of the spectrum
that are relatively easy to answer and then there are areas in
the middle that raise far more complicated legal questions.
It seems to me that there is no serious question that if a
foreign national is overseas and is actively taking up arms
against the United States, that lethal force can and probably
should be used against that foreign national in those
circumstances.
Likewise, it seems clear to me that the answer to the
hypothetical I posed to the Attorney General is simple and
straightforward, and that hypothetical was, if a United States
citizen is on U.S. soil and we have intelligence to suggest
that that individual is a terrorist, is involved with Al-Qaeda,
but at that moment that individual poses no imminent threat,
indeed if that U.S. citizen is sitting on U.S. soil at a cafe
in Northern Virginia, does the Constitution allow the U.S.
Government to use a drone to kill that U.S. citizen on U.S.
soil?
Now, in my view the answer to that question is simple and
straightforward, it should be absolutely not. The question I
would like to pose to all six of you is, does anyone disagree
with me on that? Does anyone disagree that the Constitution
does not allow killing a U.S. citizen on U.S. soil if that
individual does not pose imminent threat?
General Cartwright. I agree with you.
Senator Cruz. I am encouraged by that answer. I wish the
Obama administration had accepted this Subcommittee's repeated
invitations to send a representative because the last time the
Attorney General was here, he was quite reluctant to pose that
answer that all six of you just gave.
It seems to me there are many difficult questions about the
use of drones in our current policy in using them overseas.
There are strategic questions. Using a drone strike to take out
a terrorist or even a leader of Al-Qaeda means necessarily that
that individual will not be apprehended, that individual will
not be interrogated, we will gain no actionable intelligence,
and we will not, as a result of any interrogation, be able to
prevent acts of terror in the future.
Of course with a drone strike, the risk of error is such
that if that individual is not who we think it is, there is no
process to correct that mistake. The consequences of mistakes
are significant.
That being said, the ambit of this Committee is the
Constitution, and that is the principal focus of this hearing.
I would like to ask a question of Professor Brooks and
Professor Somin which is it seems to me that on the question of
the constitution's parameters, if we agree with the two
extremes I suggested, then you get into the whole gray area in
between.
I want to suggest four possible criteria and get both of
your thoughts as to how each of those criteria impact the
constitutional question. The first is the individual that is
the target of the drone strike, whether that individual is a
United States citizen, whether that individual is a legal
permanent resident, or whether that individual is a foreign
national.
The second possible criterion that may be relevant to the
constitutional inquiry is the location. Is that individual on
U.S. soil or is that individual overseas? A third possible
criterion is whether that individual is actively affiliated
with a foreign hostile force such as Al-Qaeda. A fourth
possible criterion is whether that individual poses an imminent
threat of violence.
I will note one of the concerns I have about the white
paper that was released on NBC is the definition of imminent
threat in my view that this administration has put forward is
exceedingly broad. So I would ask both Professor Brooks and
Professor Somin to address your views of the constitutional
relevance of each of those four criteria and to the extent
imminent threat is important, how should it properly be defined
in cabin so that it is a relevant qualifier?
Professor Brooks. Thank you, Senator. I think that those
are perfectly reasonable criteria. I think that the
administration as well has put out very similar criteria. The
trouble is, the devil is in the details as you suggest.
We can say well, if someone meets the criteria of being a
member of a foreign force that is taking up arms against the
United States or something like that, then they become
targetable. No one will disagree with that on broad principle.
The trouble is who decides what constitutes evidence, what if
you make a mistake and so forth. The same is true for all of
those other criteria.
No one will disagree with the notion that the United States
has the authority and indeed the President has the inherent
authority, AUMF or no AUMF, to use military force in the
context of a threat of an imminent and serious attack against
the United States. But as you suggest, that term ``imminence''
has gotten pretty squishy in the administration's legal memos
that we have seen so far.
I think that is why I would highlight not so much the
criteria in the abstract, but creating adequate mechanisms to
ensure sufficient transparency consistent obviously with the
classification concerns and to ensure oversight and
accountability in the case of abuse and mistakes.
There is one other thing I would add though. To me, we not
only have a constitutional question, but we also have a broader
rule of law question. In the Declaration of Independence, our
forebears spoke of inalienable rights that all men had, and
today we would talk about human rights.
The fact that someone is not a U.S. citizen--while it does
mean that they do not have the specific protections of our
constitutional law--obviously should not make us care less
about their legal recourse in the event that they are wrongly
or abusively targeted.
Again, while I am fully confident in my colleague's--in the
administration making their very best efforts to prevent abuse
in error, I do not know that that is a very firm foundation for
thinking about the rule of law more generally and in the
future.
Professor Somin. Thank you very much for the question. I
think each of the four points you raised are potentially
important in different situations. Let me briefly try to give a
few thoughts on each of them.
One is the question of whether the individual is a U.S.
citizen or a foreign national. As I noted in my initial
testimony, a U.S. citizen can potentially be an enemy combatant
in a war and that does make him or her a legitimate target if
he is. However, there are special constitutional problems that
arise with abusive targeting of U.S. citizens where doing that
might be a violation of the Fifth Amendment. It is less clear
whether the Fifth Amendment applies to foreign nationals
outside of U.S. soil.
Obviously even if it does not, targeting an innocent
civilian is still illegal under various domestic and
international laws even if they are not a U.S. citizen. But the
constitutional issues might potentially be different.
The question of location, your second criterion, I think is
more fully covered in Professor Brooks' written testimony. I
would tentatively suggest that there is a reasonable
distinction that should be drawn between terrorists or
suspected terrorists located in areas where either the
government is supporting the terrorists or they do not have
meaningful control over what is going on in their area versus
countries where there is a rule of law and where we can
legitimately resort to working with that government and
apprehending these people by peaceful means, or at least
without resorting to lethal force in the first instance.
Third, I think it does make a significant difference
whether the individual in question is actually affiliated with
Al-Qaeda or one of its associates or whether he is an
independent operator or affiliated with some other unconnected
group.
The Authorization for the Use of Military Force does not
give the President the authority to target any and all
potentially hostile groups. It is specifically limited to
``those nations, organizations or persons that the President
determines planned, authorized, committed or aided the
terrorist attacks that occurred on September 11, 2001 or
harbored such organizations.''
It seems to me that while we are at war with the
organizations listed in the AUMF, we are not at war with all
potentially dangerous groups. To the extent that some of the
targeting has gone beyond that level, then the laws of war may
not apply in the same way and it does make a difference. One of
the things that I urge in my written testimony is that Congress
consider not abolishing the AUMF but clarifying it to more
clearly delineate what, if any, other groups beyond those
listed are legitimate targets.
Finally, on the question of imminent threat, I think as I
noted in my written testimony that for groups that we are at
war with, we can target them even if they are not an imminent
threat. For people who are not covered by the AUMF, I think how
imminent a threat they pose is an important issue and one that
perhaps we can address in more detail later. I do not want to
take up too much time. Thank you.
Senator Cruz. Thank you, Mr. Chairman.
Chairman Durbin. Thank you very much. Before recognizing
Senator Franken, I ask consent to enter a statement by the
Chairman of the Committee, Senator Leahy, without objection
will be entered.
[The prepared statement of Chairman Leahy appears as a
submission for the record.]
Chairman Durbin. Senator Franken.
Senator Franken. I want to thank the Chairman for holding
this important hearing. Obviously drone strikes have
transformed the way we conduct war and this transformation has
given rise to vocal opposition and extensive public debate.
You know that we are dealing in new, strange territory when
Senator Cruz and I have the same questions. Imminence was one I
wanted to talk about in this new standard which seems really
broad to me too, Senator.
I think this debate and discussion is important, which is
why can you believe the legal justification for these strikes--
they need to be made public in a suitable form.
I went to the secure room and looked at some of these memos
and after reviewing them, I do not understand why the expert
redactors at the Department of Justice could not have just
stripped out any of the national security information, the
sources and methods that need to be redacted and make the legal
analysis public. I was also disappointed that the
administration did not send a witness today as was the Chairman
and Ranking Member.
I have long argued that the Department should not practice
secret law and should make all of the Office of Legal Counsel's
opinions available to the public. I think transparency and
accountability are very important, especially for an issue as
sensitive as this.
I am also troubled that this has not been released to
Congress, all the memos related to targeted killings.
As far as the question that the Ranking Member asked, this
is not my question, it came from another Senator. He has not
authorized me to ask this, or she. See? I can be a secret
agent, too.
This just in terms of targeting U.S. citizens, we had a
situation in Boston where we had a guy holed up in a backyard
in a boat. He, for all accounts, had explosives on him. They
did send a robot in actually to go in and take off the tarp
over the boat. But isn't it possible that we could see a
situation in which we might want to take that person out in a
different way, as odd as that is for me to ask. It feels odd,
but anybody have an opinion on that?
I mean, the Attorney General answered the question about,
well, actually Senator Paul's question, does the President have
the authority to use a weaponized drone to kill an American not
engaged in combat on American soil. Eric Holder said no, but
does anyone have an opinion on that?
General Cartwright. I would like to comment on the
approach, I will let the lawyers talk about the law side of it.
There were in that scenario, and many other hypothetical
scenarios that you could walk through, inside the United States
so many other means by which we can approach this situation
safely and ensure that if the last act was for the individual
to stand up and put their hands in the air that we would not
revoke that right of the individual to give up.
So to me, to stand off and shoot in the case of a drone is
normally scenario-dependent and not something I could answer.
Senator Franken. Well, we would only resort to that
obviously. This is maybe arguing angels on the head of a pin,
so I will move on.
Professor Brooks? Sorry.
Professor Brooks. The only thing I would say is I think it
is very important to distinguish between the kind of weapon and
the kind of legal framework. A weapon that is released by a
remotely piloted vehicle or a robot is just a weapon.
We have very clear rules in the domestic law enforcement
context about when police can use lethal force. Those are
clear. As long as we have that clear legal framework, the
lethal force is sort of irrelevant what means you use.
The problem is not the drone hypothetically being used as
opposed to something else. I think the problem is whether we
think that we have to abide by the normal rules that govern
police use of lethal force or whether we think we are in a law
of war environment in which, as Professor Somin noted earlier,
you can target an enemy combatant while he is sleeping. He does
not need to pose any imminent threat. You are targeting based
on his status, not based on his activities.
Senator Franken. All right. Since we are talking about the
method we use, and we are talking about blowback, Mr. Bergen
and Mr. Al-Muslimi, very disturbing testimony.
This might be to you, Professor Brooks or to Mr. Bergen or
anyone. We have blowback when we do manned air strikes. What is
the difference?
In other words, I think you wrote in your testimony--I am
sorry I was not here Professor Brooks for your oral testimony,
but that there are obviously civilian casualties when we do
manned air strikes.
Is there a qualitative difference? Is there really? Anyone
who wants to answer that.
Colonel McSally. Senator Franken, this goes to the heart of
what I was trying to get in my testimony which is once you have
answered the question that it is legal to do a strike and that
it is good strategy to do a lethal strike, when you are then
selecting the platform, a remotely piloted aircraft actually
gives you better precision with a small warhead with
persistence overhead with the ability to abort at the last
minute with the whole chain of command and the lawyers watching
with the intel analysts who are not getting shot at.
So once you have decided to actually conduct a strike, the
RPA's provide unprecedented persistence and oversight. When we
are using ground forces, special operations, artillery, fighter
aircraft, which I have done many times, you do not have that
same level of oversight. You often have in some cases
individuals on the ground talking with aircraft overhead whose
buddies have just been shot up and their perspective is skewed.
So you are making decisions in the heat of the battle.
We do that with great precision as well, but in this case
when we are talking about counterterrorism operations and we
are having to choose the platform, oftentimes we are talking
about places where we do not have American forces and then we
have to decide whether we want to risk American forces to go in
there either on the ground or in the air.
The RPA's do give us an asymmetrical capability where we do
not have to risk American forces. That is not a bad thing that
we are not risking American forces once we have decided it is
important to conduct a lethal strike. So this does provide
greater lethality and persistence in the ability to abort than
other assets.
Professor Somin. Just one small comment on that question. I
think the key point as I tried to stress in my written
testimony is that what matters is not whether we are using a
drone or a bomb or a plane or even a sword or a dagger. That is
not what matters from a moral or legal point of view. What
matters is whether we are choosing the right target.
If we have chosen the right target, then we are entitled to
use all appropriate weapons and I think it would be a mistake
to ban a particular technology, particularly if, as in this
case, it is sometimes more accurate and discriminating than
other alternatives.
Senator Franken. Mr. Al-Muslimi raised his hand. What I
wonder is and I think you will speak to this, is that this new
type of warfare, and Mr. Bergen has spoken to the number of
countries now, 70 that they are in, is it a different kind of
blowback?
Is there a different kind of reaction because of the very
nature of it?
Mr. Al-Muslimi. Yes. I think the main difference between
this is it adds into Al-Qaeda propaganda of that Yemen is in a
war with the United States. The problem of Al-Qaeda if you look
to the war in Yemen, it is a war of mistakes.
The less mistakes you make, the more you win. The drones
have simply made more mistakes than AQAB has ever done in the
matter of civilians. You are also neglecting a very simple fact
which is you actually can capture this person. It is not
impossible. Just like the last time recent in my village. You
could have captured this person and that is a big blowback.
AQAB power has never been based on how many numbers it has,
whether it has 1,000 or 10,000. Actually the difference is not
that much. It is about how much logic it has on the ground and
how much it can convince more Yemenis that they are in a war
with the United States.
The drones have been the great tool they have used to prove
that they are in a war with the U.S. I think that is the main
blowback that is not with the ground forces, especially if
there is ground forces. The ground forces of Yemen can capture
them, actually, and have information from them.
Senator Franken. Thank you for that chilling perspective.
Mr. Chairman.
Chairman Durbin. Thank you. It is my understanding Senator
Grassley will have a chance to ask questions at this point.
Senator Grassley. All right. First of all, permission to
put a statement in the record.
Chairman Durbin. Without objection.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Senator Grassley. Professor Somin, I am going to
immediately go to a question instead of a lead in to it because
as a follow-up on the discussion you had with Senator Cruz, is
the current AUMF broad enough to encompass targeted strikes
ordered by a President, or in this case President Obama, or
should Congress broaden the AUMF in order for these strikes to
continue?
Professor Somin. Without knowing the full details of all
the targeted strikes that have been done, it is hard for me to
say which of them, if any, cannot be covered by the AUMF,
though I suspect based on what is on the public record that
some are at least questionable.
I think Congress should try to amend the AUMF to more
precisely define what kinds of groups we can target if we do
want to target as I think, perhaps, we do, some groups that are
not covered by the AUMF.
Ideally what we want is the ability to target organized
groups who are waging war against us, but at the same time not
give the President a blank check to target whatever groups he
or someone else in the administration might consider it might
be a good idea to go after if they are not really waging a war
against us.
I do not think you should completely repeal the AUMF. But
some revisiting and clarification is definitely desirable.
Senator Grassley. Do you think the Constitution provides a
sufficient basis for the President to order these targeted
strikes absent reliance upon that law?
Professor Somin. It depends on what strikes we are talking
about. Strikes that do deal with imminent threats, defined
relatively narrowly, could perhaps be justified as defense
against attack. But beyond that I think one cannot launch
strikes against groups that are not covered by the AUMF.
Senator Grassley. I did not direct this to you, Colonel
McSally, but what is your view on my last question about the
Constitution versus absence reliance upon the AUMF?
Colonel McSally. Sir, I am not a legal expert, but I will
say that Article II of the Constitution, if the target is an
imminent threat, then that clearly is authorization in and of
itself.
Where AUMF comes in is when you do not have that imminent
threat criteria, but you have Al-Qaeda, Al-Qaeda leaders, Al-
Qaeda affiliates that are specifically designated through the
intelligence process in order to allow them to be legitimate
targets.
So just speaking broadly in my work in Africa Command which
actually I think has the highest level of scrutiny of the areas
that we are talking about, it was a very high level in order to
make the case that individuals or organizations fit the
criteria of AUMF. That bar was very high and those discussions
were at the very highest level of the chain of command before
anybody was approved.
Senator Grassley. My next question, Professors Brooks and
Somin, you both suggested today that one of the problems with
the current drone strike procedure is oversight, specifically
who determines the targets, how they do so, and how much
evidence they might need.
One solution some have raised is an independent court that
reviews administration targets prior to drone strikes similar
to the current FISA court that reviews foreign intelligence
operations.
Critics of this proposal note that a court would be
misleadingly comforting to the public because they are not
experts in warfare. Further, the use of such court raises
separation of power concerns.
Question: Do you think that a special FISA type court is a
good idea to provide independent oversight of the
administration targeted killing program? And then let me follow
up. Would such a court be constitutional?
Professor Somin. In brief, I think it would be
constitutional and certainly most agree that the FISA court is.
There can be legitimate questions about how such a court would
be set up and how it would be run and some scholars that I cite
in my written testimony have discussed this in some detail.
I think the issue of the people on it not being expert
enough can be overcome simply by appointing lawyers and others
who do in fact have a background in relevant military issues.
There is always, of course, a danger of false comfort or
complacency. But I think such an institution by providing an
outside check on executive discretion can at least prevent the
most serious abuses that can possibly arise. Nothing can solve
all our problems completely. But our goal should be to at least
try to minimize them and reduce them relative to what might
otherwise occur.
Professor Brooks. Senator, I agree that one could devise
such a court that would pass constitutional muster. I would
note, however, that many of the issues associated with a court
that would approve in advance targeting decisions could be
eliminated by shifting the focus. Specifically, if Congress
were to create a statutory cause of action for damages for
those who had been injured or killed in abusive or mistaken
drone strikes, you could have a court that would review such
strikes after the fact. Having such a court might eliminate a
lot of the problems associated with having judges acting in
advance but still create a pretty good mechanism that would
frankly keep the executive branch as honest as we hope it is
already and as we hope it will continue to be into
administrations to come.
Also, there is no inherent reason that such a court would
need to operate in the extreme degree of secrecy that we have
seen with the FISA court. There is no inherent reason that you
could not have at least declassified portions of opinions.
Something like that is not the only potential solution to the
various oversight and accountability problems, but I think it
would certainly be one of the approaches that would go a very
long way toward reassuring both U.S. citizens and the world
more generally that our policies are in compliance with rule of
law norms.
Senator Grassley. My last question will go to Professor
Somin. In your statement, you identified two key issues with
the administration's current approach on drones. First, who in
the administration decides who should be targeted, and second,
how much proof they need to actually order a strike.
You note that the administration's white paper did not
actually answer these troubling questions. Indeed we have seen
that the administration is reluctant to share its process with
the American people.
Two questions. First, do you think it would be beneficial
for the administration to publicly disclose its current drone
targeting procedures so that the people know how those
officials determine who to kill during targeted drone strikes?
Second, what do you think would be the proper burden of proof
in these targeted drone strikes?
Professor Somin. Senator, those are, I think, both good
questions. Like many of the other panelists and the Senators on
the Subcommittee, I agree that it would be desirable to
disclose the legal basis and criteria that are used, obviously,
consistent with not disclosing classified intelligence and
methods and sources and the like. I think it is legitimate to
ask the administration to do that.
In terms of what the burden of proof should be, I am not
sure I have a clear opinion of the exact precise standard.
Realistically it probably should be lower than the beyond a
reasonable doubt standard that we use in criminal cases because
the nature of war probably does not allow proof to that high
level. But it should certainly be more than a minimal level of
proof. Some scholars such as Amos Guiora have proposed various
standards of proof and I think that ultimately we should aim
for a standard that is realistic in war but also provides us
with at least a substantial degree of confidence that we are
not targeting people recklessly and that we have at least
substantial and extensive intelligence backing the decision.
Senator Grassley. Thank you, Mr. Chairman, and thank you
panel.
Chairman Durbin. Thank you, Senator Grassley.
Senator Blumenthal.
Senator Blumenthal. Thank you, Mr. Chairman, and thank you
for holding this hearing and thanks to our Ranking Members as
well.
I think we are wrestling with a lot of these profound
questions and wrestling on a very bipartisan basis as you have
seen because we are struggling with issues not only of
constitutional law, but also of conscience and conviction and
morality, not to mention the profound foreign policy
implications that may be involved.
I want to thank Mr. Al-Muslimi for giving us the insight
into the chilling unintended consequences of possible mistakes
in this area. I have to assume they were unintended
consequences because simply we have that faith in the good
intentions of our military and of the decisionmakers who are
guiding this process.
Stepping back for a moment, one question on my mind is
whether the rules applicable to drones--and they are in the
title of this hearing, call them unmanned aerial vehicles or
remotely piloted aircraft. Whatever they are called, whether
those rules really should be fundamentally different than they
are for any targeted strike.
Colonel, as you have pointed out, when the decision is made
to do a targeted strike, assuming that decision is justified by
imminent threat or all of the other criteria, then we have a
set of tactical weaponry at our disposal. It may be boots on
the ground, fighter aircraft, cruise missiles, or artillery.
Very often remotely piloted aircraft are more precise,
quicker and more reliable with less cost both in terms of
collateral damage and potential threat to our own troops. So I
guess the question on my mind is should the rules be any
different for this new form of weaponry?
The rules are obviously different for nuclear strikes in
some sense and we are developing rules for cyber warfare as
General Cartwright has made the point very aptly and
powerfully. But let me begin, Colonel McSally, and then perhaps
to you, General Cartwright.
Knowing the nuts and bolts of this kind of weaponry, should
the rules be any different for remotely piloted aircraft, a
term which I agree probably more aptly and accurately describes
this kind of weaponry, than the other targeted strikes?
Colonel McSally. Thank you, Senator. Absolutely I think the
answer is no, the rules should not be different. A remotely
piloted aircraft is simply a tool to meet our objectives once
we have decided that we want to meet those objectives and it is
legal to meet those objectives.
This discussion actually reminds me a little bit about
after World War I when our pioneer of air power, Billy
Mitchell, was trying to make the case that we could take out
naval ships with air and nobody could believe him and we
thought that was ridiculous. Then he had to make that case and
there was a whole lot of angst over using this new tool of air
power in order to meet our objectives.
We eventually got to the point where we are very
comfortable using air power in certain circumstances versus
ground forces or a naval gun fight in order to meet our
military objectives.
I think this is a very similar transformation that we are
going through. This discussion and the debate is all certainly
worth having. I think where we need to have our focus is the
transparency on the legal argument and the transparency on the
justification for our counterterrorism strategy for use of
lethal force and focus it there and then keep this remotely
piloted vehicle discussion, remotely piloted aircraft as a tool
that we are using that is an asymmetrical advantage that we
have and if we are in a fight, it is okay to have an
asymmetrical advantage. You do not have to risk American lives
if you need to use lethal force to meet your objective, so why
would we when we have the capability to do it in a way that is
cheaper, more persistent, and less risk to American lives?
I think the rules should not be different and I think this
discussion is worthy. But I will also say from a military
process, there are really two elements that we go through. One
is, how do we approve an individual to be an approved target?
The second process is, then what do you go through in order to
actually get approval to strike and to conduct the strike?
This is where I think we need to be focusing the
discussion. This process right here, also you could raise or
lower the bar based on discussions here today of are we hitting
higher level or lower level, but from my experience there is a
whole lot of precision and scrutiny in this second part and we
need to be focusing on this first part.
Senator Blumenthal. Do you agree, General?
General Cartwright. I do agree. I think one of the
opportunities here that remotely piloted aircraft can offer us
is that there is more decision time, therefore more review
time, therefore a better opportunity to be sure.
There are more eyes on the issue in an environment where
they can make decisions, so it offers us opportunity that we
probably have not taken advantage of.
Senator Blumenthal. Conversely, anybody who is familiar
with the history of war knows that abuses in the use of
aircraft bombing, carpet bombing involving unintended damage or
perhaps sometimes intended damage to civilian populations is
endemic to the history of warfare and sometimes used by our
enemies. Unfortunately in some instances in the past, used by
the United States.
We are dealing here with a set of questions that has
persisted for some time.
Let me focus and again to you, Colonel McSally, because Mr.
Al-Muslimi raises the issue and I think it is a very legitimate
issue that somehow there is the appearance, the perception of
greater damage and possible mistakes associated with this kind
of weaponry, this tool. Is that a fair criticism do you think?
Colonel McSally. Well, I cannot speak specifically,
Senator, about operations in his country, but I can say that
the capability does exist to make sure that we minimize
civilian casualties. The process that I have been through and I
am familiar with is one where we have to meet a very high level
of positive identification once a target has been approved as a
target, that we have actually met the criteria of positive ID,
that we have met the criteria of geographic location with a
variety of different sources, again, it is with high confidence
and that we have done a very thorough collateral damage
assessment which is a very detailed process that we go through.
Again, I would encourage you all to get the classified
briefing on that process and how we do that and to make sure
that we do not have unintended civilian casualties. So we do
have the process available and in the case that you so
eloquently have been sharing about the impacts of some of the
strikes going on in his country, I think we do need to take a
look at the scrutiny of who is on that list, again in that
first portion and then making sure that the operators have the
appropriate bar of positive identification and geographic
location and their collateral damage assessment.
We do have the capability and we have done it in the past
and this testimony shows that we need to ensure that that is
very high because the unintended consequences are severe.
Senator Blumenthal. My time has expired, but if the
Chairman allows, if Mr. Al-Muslimi has any comment.
Chairman Durbin. Of course.
Mr. Al-Muslimi. Thank you. I would say one of the things
that are needed the most are say who is on this list. A lot of
the mistakes also that have happened is because I do not know
if this person is a target or not, therefore he is welcomed
anywhere he goes and that has made a lot of mistakes that have
happened.
A lot of killing has happened simply because people do not
know that this person is a target and not just that he was not
tried to be arrested.
Another issue it has blowback of making people fear the
U.S. more than fearing AQAB. I met the lady or the man from
Nader in the middle and what he say is that in the past women
used to tell their children go to sleep or I will call your
father. Now they say go to sleep or I will call the planes.
That has shifted the whole conversation, or the whole thing
of this. In addition, it is not just any qualitative blowback
of this specific example, but more importantly it is a killing
legitimacy of the government which is killing, making it look
like the American public in Yemen, making other countries like
Iran, making use of this, and it has done much more than you
can imagine.
Chairman Durbin. Thank you.
General Cartwright. Senator, just real quick.
Chairman Durbin. Yes, General.
General Cartwright. I worry here. What we have seen with
drones is that without precise targeting on the ground, precise
information and intelligence that is verifiable, that that is
generally when we have errors. So we need to look at that end
of the process.
In whatever process we put together, we need to ensure that
the intelligence that drives the targeting is also part of the
scrutiny. If we miss that, then we rely as you say just on the
drone, we have challenges.
Senator Blumenthal. Thank you. Thank you, Mr. Chairman.
Chairman Durbin. Senator Graham.
Senator Graham. Thank you, Mr. Chairman. I would just like
to say for the record that no system is perfect, but generally
speaking I want to applaud the Obama administration's what I
think is an aggressive and responsible use of the drone
program, particularly in parts of the world where we do not
have ground forces or a whole lot of control to make the rest
of us safe.
I do not get to say many good things about President Obama
in South Carolina, but I will say that I think he is serious, I
think he is thoughtful, and I think he takes the responsibility
when it comes to targeting people in a very Commander-in-Chief-
like way.
General Cartwright, as a Marine, when you are ordered into
battle by your Commander in Chief, do you obey his orders?
General Cartwright. I do.
Senator Graham. I find it a bit odd, quite frankly, that we
are going to give the Commander in Chief, under the
Constitution by the way, the authority to order our own
citizens into battle but they do not get to go to court.
The Marines do not get to say, ``I think that is a dumb
decision, I want to go get a judge to say, `hey, you should not
go.' ''
My belief is that there is nothing more basic to being
Commander in Chief than being able to order people into battle
and being able to suppress the enemies of this Nation. If you
want to talk about transparency, count me in, if you want to
talk about having Congress more involved in how the system
works. But if you are contemplating conferring the power from
the Commander in Chief to a bunch of unelected judges to make
wartime decisions, count me out. That would be to me a
breathtaking overstepping and quite frankly, unfair to the
courts because if there is a situation where they get a case
and they say no, we do not think you are quite there and that
person winds up killing a bunch of Americans, there would be
outrage in this country like you have never seen and the court
cannot defend itself.
But here is where elected officials have a different
standing. The President of the United States would have to
answer to the people about any mistakes he made. So count me in
for reforming the system. Count me out for basically turning
the war into a crime.
Now, the Doctrine of Preemption, do you think that is a
solid doctrine, Mr. Bergen, in the war on terror?
Mr. Bergen. It all goes to the question of imminence, sir.
Senator Graham. Well, the theory being that basically when
it comes to Al-Qaeda and Taliban and other folks, it is better
to hit them before they hit you.
Mr. Bergen. If you look at the victims of these strikes,
overwhelmingly now they are lower level members of the Taliban.
So the question is do they pose an imminent threat?
Senator Graham. All right. Let us talk about that. General
Cartwright, you are in Afghanistan. You walk up on a bunch of
Taliban guys that are asleep. Do you have to wake them up
before you shoot them?
General Cartwright. No.
Senator Graham. Why?
General Cartwright. Because it is an area of hostility and
he is a legitimate military target, or they are.
Senator Graham. Mr. Bergen, that is the point. Once you are
designated an enemy, we do not have to make it a fair fight. We
do not have to wake you up, we are going to shoot you. The
point is do not become part of the enemy.
Here is the problem. How do we know if you are part of the
enemy? That is a legitimate, honest inquiry here. So what I am
suggesting is that we kind of back off and look and see the
goal we are trying to accomplish. What is your name again, sir?
I do not want to mispronounce your name.
Mr. Al-Muslimi. Al-Muslimi.
Senator Graham. I have been to Yemen. It is a country in
great turmoil. Do you agree with that?
Mr. Al-Muslimi. A country of?
Senator Graham. Great turmoil. Great conflict.
Mr. Al-Muslimi. They definitely have a lot of problems.
Senator Graham. All right. I understand that. Mr. Bergen,
would you have advised President Obama to call the Pakistani
government up to go arrest Bin Laden?
Mr. Bergen. Well, it was discussed and it was rejected.
Senator Graham. Can you imagine what would have happened if
it came out in the public that we told the Pakistani government
Bin Laden is over here, go get him and he got away? My party
would have eaten President Obama alive.
The reason President Obama did not do that in all candor is
you cannot trust the Pakistan government to go pick up Bin
Laden. In all due deference to your country, there are places
in your country I would not tell anybody about what we were up
to because I think the person that we are trying to capture or
kill would wind up knowing about it.
Your point is why do we not arrest the guy in the village?
Nothing would please me more to be able to arrest somebody to
interrogate them, but the world in which we live in is if you
share this closely held information, Colonel McSally, you are
going to wind up tipping off the people we are trying to go
after. Do you agree with that?
Colonel McSally. In some cases, absolutely, sir.
Senator Graham. So I just want to put people in President
Obama's shoes for a moment. What do you share and who do you
share it with? Who do you pull the trigger on and who do you
give a pass?
All I can say is that he above all others and the next
person to occupy that office needs to have a reasonable amount
of deference but not unchecked power. We have one Commander in
Chief, we cannot have 535 Commanders in Chief. So Mr. Chairman,
I am glad we are having this debate.
When it comes to the law of war, the two professors, is it
fundamentally different than domestic criminal law?
Professor Somin. Yes, it is.
Professor Brooks. Yes, it is.
Senator Graham. The purpose of the law of war is to win the
war, is to neutralize the enemy, to gather intelligence. The
purpose of domestic criminal law is to solve a crime, bring
people to justice, giving them a chance to be acquitted or
convicted and the purpose of law of war is fundamentally
different. Do you agree with that?
Professor Brooks. Absolutely.
Professor Somin. Yes.
Senator Graham. The goal here is to make sure that we know
the difference between fighting a war and fighting a crime, and
here is the problem for the country. There is, Mr. Bergen, no
cupola to conquer. There is no Air Force to shoot down, there
is no Navy to sink. We are fighting an ideology that is
transforming itself all over the globe.
We need to look at the AUMF anew, we need to broaden the
ability to go after the enemy because it is changing day by
day. But we need to do so within the values of being an
American.
I will end with this thought. Please do not mistake my zeal
for defending the country that I do not have values. It was
Senator McCain and myself with many others who said do not
torture the detainee. When you capture someone, we do not cut
off their heads, we give them the lawyer. That makes us better,
not weaker.
So count me in for the idea of fighting the war within our
values. The reason I do not want to torture anyone is because
that is not who we are about and it hurts us more than it helps
us.
But having said that, I do understand the difference
between fighting a war and fighting a crime, and I will work
with my colleagues in any way possible to make sure we make the
least amount of mistakes as a nation. But the one mistake I
will not tolerate is the mistake of believing we are not at
war.
Chairman Durbin. Senator Lee.
Senator Lee. Thank you, Mr. Chairman, and thanks to all of
you for joining us today. I would like to start with Professor
Somin.
Professor, in your testimony you note that critics of the
administration's white paper on this issue focus on the
weaknesses of the three requirements outlined in that white
paper that under the memo's analysis must be met before a U.S.
citizen may be lawfully targeted in a drone strike.
You argue that because those requirements apply only when
the individual is a senior operational leader of Al-Qaeda or of
some associated force, the memo's weaknesses might be mitigated
or some have argued this anyway.
You state that a senior Al-Qaeda leader likely qualifies as
a legitimate target even if he does not pose an imminent
threat. But as you also note, the real difficulty lies in
determining whether somebody is or is not in fact a terrorist
leader.
This puts us in an interesting spot. Our constitutional
system requires us I think to accord a degree of due process to
a U.S. citizen before that U.S. citizen is deprived of liberty
or property or most importantly, life.
Do you tend to agree that it is essential that we have in
place some kind of procedures to make sure that people are not
deprived of life? In this instance, absent some kind of an
adequate procedure that can be used for determining whether
somebody is in fact a terrorist leader?
Professor Somin. Yes, I do agree and I think that is the
central issue that I posed in my testimony and that some of the
other witnesses have as well, is that if somebody really is a
terrorist leader that is part of a group that is at war with
us, then they are a legitimate target, even if they are not an
imminent threat, as Professor Brooks said, even if they are
sleeping in their bed. Osama Bin Laden, I think, was asleep
when he was targeted. But that did not make it an illegitimate
attack.
At the same time, we do need some procedures in place to
ensure, particularly in the case of U.S. citizens, that we are
in fact choosing the right people. I suggest a FISA-like court
is one mechanism that can potentially be used. But also
obviously there have to be in place procedures within the
executive branch itself to try to minimize the risk of error in
this respect.
We cannot unfortunately in war have as much procedure as we
would have in ordinary law enforcement. But that does not mean
the issue should be just completely left up to the discretion
of the President and his subordinates.
Senator Lee. Do you have any indication as to how this
administration believes that it should move forward? How it
should go about making this kind of determination in a way that
accords the appropriate degree of due process?
Professor Somin. Some of the other witnesses may be more
qualified than I am to speak to that question. I think the
difficult issue is that so far the administration has not made
public a lot of its procedures. So I join with all the many
people who have already at this hearing stated that more
publicity on this is desirable, obviously consistent with
protecting classified intelligent sources and the like.
Once we know more, we might be in a better position to
assess whether the procedures are adequate or not.
Senator Lee. All right. I appreciate that. I want to ask a
question that I will give each of you an opportunity to answer.
Given the time constraints we face you will have to be a little
bit short. But why do we not start at the far end of the table
and move back this way?
My question is this. What do you think are the obstacles,
the principal obstacles to providing for some kind of
independent review, independent judicial review of the
executive's determination that a U.S. citizen is a terrorist
leader and therefore potentially the subject of a lethal drone
strike? We will start with you, General.
General Cartwright. There are so many scenarios here that
you could wander your mind through, but the challenge if you
are in a declared area of hostility which is the basis of the
questions that Senator Graham was asking, then you have a set
of rules even associated with Americans that might be in that
population of targetable people.
It would be difficult to stop and have a court case for
each one of them. When you are outside of an area of hostility,
a declared area of hostility, then I think you have more leeway
to have a discussion.
I personally believe having a process on the back side, in
other words an accountability process that says okay, we knew
going in we had set up some rules. They may not have worked all
the time, we may have made errors.
Were errors made in this case? Should the victims, whether
they be U.S. citizens or not, have been afforded more rights?
Should they be compensated for the loss? What should happen at
this stage of the game to address many of the questions like
the Yemeni examples that we have heard today, rather than
putting a court in the middle of a war construct, which would I
think have some constitutional issues. I defer.
Senator Lee. Thank you. Professor.
Professor Brooks. Senator, I think that there are no
obstacles to creating a more fair and transparent system for
ensuring it, certainly with regard to U.S. citizens, that they
are not wrongly targeted by their government based on
misinformation. I think that all of the reassurances we have
heard about the use of remotely piloted aircraft to ensure that
we are getting the people we target and not innocent civilians
are only as good as our intelligence, and they are only as wise
as our strategy.
That said, I think that the biggest political barrier that
stands in the way of developing some better mechanism, judicial
or otherwise, to ensure that we are targeting the right people
based on a reliable process and a fair process and fair rules
are that we tend to see this as a very black and white issue.
There is war and there is crime and never the two shall meet
and they are completely different legal systems with completely
different rules.
What we have here right now with globalized terrorism, both
with Al-Qaeda and other kinds of groups, some of which are not
affiliated with Al-Qaeda, is something that in many ways is
like traditional armed conflicts and in many ways is more like
large scale organized crime. That is just the reality. It has
dimensions of both and requires both military tools at times
and also tools that are more traditionally associated with
intelligence and law enforcement like disrupting finance and
communications.
I think if we can get past that, right now we have a lot of
people talking right past each other. We say in a war you can
do this and everybody says, well, that is right, and you say,
well, if you do not have a war you cannot do that, and
everybody says that is right. But then the trouble is, we have
a lot of difficulty deciding whether we should apply the war
paradigm or the crime paradigm.
Senator Lee. Well certainly you are not disputing that
there are some bright lights that go on?
Professor Brooks. Absolutely.
Senator Lee. Once you are talking about domestic soil, U.S.
citizens.
Professor Brooks. Absolutely, Senator. On the extremes I
think we have got a lot of pretty easy issues. It is in the
middle that the issues get harder and we need to get more
creative about developing hybrid legal mechanisms.
Senator Lee. All right. Mr. Chairman, I just realized I
have committed a grave error punishable by death within the
Senate which is asking a question that is going to take me well
over. Do you want me to rescind that part of the question for
the rest of the panel? How do you want me to proceed?
He just said to suspend the death penalty on this
circumstance. I appreciate that.
Professor Somin. Conscious of the sword of Damocles hanging
over my head, I will try to be brief. I think there are two
obstacles to ensuring a better system here. One is that we are
necessarily relying on intelligence that in some cases is going
to be iffy. Second, the review mechanism which I believe should
be independent, must nonetheless act reasonably swiftly.
Otherwise we might lose the opportunity to attack a legitimate
target.
These are genuine problems but they are not insuperable. We
have overcome them to a large extent with the FISA court.
Scholars such as Amos Guiora of the University of Utah proposed
ways to do it. And as he points out, the government of Israel
does in fact have a review mechanism for their targeted
killings and it has worked, at least in his view and that of
other scholars, reasonably well over the years.
I am not saying we can adopt the exact methods that they
use. Obviously their situation and system of government is
different from ours. But I think despite the difficulties, we
can at least reduce the risk of error and increase the chance
of limiting this to legitimate targets without losing the
opportunity to attack genuine terrorists who are still out
there. Thank you.
Senator Lee. Thank you. Colonel.
Colonel McSally. I do believe the first effort needs to be
more transparency in the process that we are using in order to
identify somebody as an approved target.
I will say if additional oversight does come in your role
that is decided upon, I would encourage that it would be in the
area of someone being an approved target, but not in the area
of an approval to strike because when you get into that second
area, sometimes it is moments, hours, days, weeks, months or
even years before the stars line up that we meet all the
criteria, we have identified the individual with the right
collateral, low civilian casualties in the right geographic
location with the right weapon.
If that happens, it has got to be on the front end to name
somebody on that target list outside of an area of active
combat operations.
Senator Lee. Limited perhaps to the finding that they are a
terrorist leader.
Colonel McSally. Then you have to let the targeting process
go. It is already painful enough to go up the chain of command
to whatever level we have to, sometimes very high in the middle
of someone already having been approved. They are already on
the list and now you actually have to get additional approval
to strike.
Many times you lose the opportunity because too much time
goes by and the target is fleeting. So any of that additional
oversight needs to be on the front end and outside of our
traditional combat operation areas.
Senator Lee. All right. Thank you.
Mr. Bergen.
Mr. Bergen. I think there would be an advantage as General
Cartwright suggests in having a post factor review of CIA
strikes. There would be a very concrete thing that could come
out of this.
As you know, when the U.S. military inadvertently kills
civilians, we pay solatia payments to the victim's family. You
can imagine a post factor review of CIA drone strikes where
there was civilian casualties. That would allow you to
basically make the same kind of payment. After all, if it is a
war and there are innocents killed, it does not matter where
that takes place.
We as a country have tended to compensate people when we
can.
Mr. Al-Muslimi. To agree with that point, in the last few
years since the strike drones and target killings have been
used in Yemen, actually AQAB has been stronger, so it is very
hard to think of how this can be actually made any good.
But to make it less bad, I think one of the things that has
to be done very fast is issue an apology to the civilians and
pay compensation for the civilians' relatives who were killed
and more importantly, everywhere where the drone strike has
killed civilians I think there has to be at least a sort of
compensation to build a hospital or a school in a country that
is lacking school or hospital.
Senator Lee. All right. Thank you. Thank you very much.
Thank you for your indulgence, Mr. Chairman.
Chairman Durbin. Thanks, Senator Lee. Mr. Al-Muslimi, do
the people of Yemen know that we are there with the approval of
the government of Yemen?
Mr. Al-Muslimi. It is very hard to speak whether people
know or do not know, but whether the government approve or does
not approve, it is outside the big fancy walls of the capital,
bringing a lot of problems, a lot of blow blacks.
It is not an issue whether the government approves it or
not. It is not an issue of sovereignty. It is much as this and
the ground, it does not take rocket scientist to figure it out.
It has been a problem I think more than it has any good.
Chairman Durbin. Before the drones, was AQAB viewed as a
positive force in Yemen or a negative force?
Mr. Al-Muslimi. We have spoke to every Yemeni--I have never
met anyone who looks to AQAB as a positive entity ever.
Chairman Durbin. Thank you. General Cartwright, we have a
divided responsibility when it comes to drones, forgive me,
Colonel, I am going to continue to use that reference, between
the CIA and the military, JSAC.
Aside from the intramural conversation we might have about
two different agencies, can you give me your opinion as to
whether this is a good thing, a necessary thing, or whether it
should be continued?
General Cartwright. I think Colonel McSally will jump in on
this, too. My experience, whether it be drones or other types
of weapon systems, when you ask the military to conduct
operations that are non-military, we generally have trouble
because we train our people to do military operations.
If you ask them to patrol the border, people oftentimes get
killed that should not have been shot. If we are going to have
the military participate in these types of operations for an
extended period of time, more than just a one-off type mission,
then we need to go back to some of the practices we probably
had in the past associated with reconnaissance where we have
specific units designated and equipped and trained and
recruited to do that kind of operation and fund it.
If that is what we are going to do, then that is what I
would recommend. In other words, if you would like to have just
one Air Force rather than two or three for the country for
logistics reasons, for training reasons, et cetera, then it
needs to be an Air Force that is capable of training a set of
people for a specific type of mission that is not the same
mission as an area of armed conflict.
Chairman Durbin. I guess what I am driving at is this. I
have been to one of our bases where the drones are launched and
I have seen the intelligence gathering taking place. When it is
done according to the book, and that is what I was told, it is
a very painstaking, elaborate, lengthy evaluation of a site, a
person, before the ultimate decision is made. Despite the
tragic circumstances where innocent people are killed, and it
has happened, every effort is made to avoid that to the
extreme, as it should be, as Americans would insist that it be.
I guess the basic question is whether or not the
intelligence capacity which is so important in that process is
different or better between the CIA and the military. Do you
have an opinion?
General Cartwright. If it is not inside of an area of
hostility, it is in a country where we have not declared
hostilities, then it is generally accepted that the agency has
better intelligence and better ability to gather intelligence
than the military does.
That is under the current rules about who does what, where.
Chairman Durbin. Thank you. Mr. Bergen, one of the things
that your New America Foundation has been involved in is some
public opinion research about the impact of the drone strikes
in Pakistan and Yemen. Could you tell me what you found?
Mr. Bergen. We did an independent poll in Pakistan's
Federal Tribal Area where all these drone strikes happen and we
found overwhelming opposition to the drone strikes.
If we asked the question if the Pakistani military was
involved, would your opposition change, and the opposition goes
down quite a lot if the Pakistani military was more involved.
It is an issue of national sovereignty.
We also found overwhelming opposition to Al-Qaeda and the
Taliban and we asked the question if the Al-Qaeda or the
Taliban were on the ballot, would you vote for them in an
election and the answer was only 1 percent would.
There has not been to my knowledge really good polling in
Yemen on this issue. There is some public discontent, but it is
nothing as far as I can tell anything on the scale of what it
is in Pakistan, where it is really more about in my view the
sovereignty issues than the civilian casualty issues.
After all, their parliament in April voted to basically
stop this. So you have got this very kind of confusing
situation where the parliament has voted against this, yet it
still proceeds. They have F-16s which could theoretically shoot
these drones down but do not. So there is some sort of passive
but tacit consent.
Chairman Durbin. That is exactly the point I want to go to
with Professor Brooks and Somin with my last question.
What I find different here is this definition of
battlefield. I knew what we were voting for in 2001 when it
came to Afghanistan. We were headed there, that is where Al-
Qaeda was and they had just attacked the United States and we
were going to answer that attack.
I did not realize as I said and I do not think many Members
did, that we would be having this conversation 12 years later
about Yemen, Somalia, even Pakistan. Maybe I should have been
able to discern that, but I did not. Maybe some did.
It appears now that we at least have to have tacit,
passive, if not active approval before we are using these
aircraft, these unmanned aerial aircraft before we engage the
enemy.
I take it the enemy is a lot of other places that we are
not pursuing them. How does this work into this definition of
battlefield and the Authorization for Use of Military Force?
Professor Brooks. Not very comfortably frankly, and that is
why I emphasize that the deep problem is that we have got two
legal paradigms that just do not fit the challenges we are
faced with right now.
To illustrate, you may remember, Senator, in 1976, Orlando
Letelier, the former Chilean defense minister, who had been
ousted in a military coup on Chile and imprisoned and tortured,
who ultimately came to the United States and was outspoken
against the Chilean military dictatorship.
The Chilean military decided in the context of an ongoing
insurgency in Chile that they did not like that very much and
so Chilean intelligence operatives planted a car bomb in his
car here in Washington, DC, killing him and his American
citizen assistant, Ronni Moffit.
Our government at the time called that murder, called that
extrajudicial homicide. My concern right now is that we have,
because of the gap between these two legal paradigms and the
extreme secrecy and lack of transparency in which these
decisions take place, right now if we could imagine that those
circumstances occurred today, I would assume that the Chilean
military government were it still extant would be saying to the
United States, what is your objection?
He is an enemy of the Chilean state, you were unwilling or
unable to do anything about it. We asked you, you harbored him,
and so we had to take matters into our own hands. If we said,
well, we questioned your assessment that he was a combatant or
that there is an armed conflict, they would reasonably reply,
that is our decision to make and we do not have to tell you the
basis on which we made it or anything else.
My concern, my broad rule of law concern here is that we
have essentially handed a playbook for abuse to oppressive
governments around the world. We need to develop some middle
ground that acknowledges that we are in a situation that is
war-like in many ways but crime-like in other ways. I think we
can do that. I think that is just a question of creativity.
One final comment, if I may. It really goes to the
strategic issue. When it comes to the strategic costs and
benefits of this policy, unfortunately perceptions matter as
much as reality, so while I very much agree with my colleagues
that drones do not present novel legal issues, the reality is,
as my colleagues have also suggested, the blowback is real.
When we are taking into account the strategic costs, I
think that is something unfortunately we have to consider just
as much as the legal issues.
Professor Somin. Just briefly on this issue. The AUMF as
written actually does not contain a geographic limitation.
Rather the limitation is based on the nations, organizations,
or persons that the President determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11. So it is not limited to Afghanistan or any other
particular nation.
It allows the President to attack these groups or
individuals wherever they might be located. But as I said
earlier, there is an important distinction between nations
where the government either supports these groups or is
unwilling or unable to do anything about them and nations where
there is some reasonable rule of law.
I think both legally and from a policy perspective,
different measures are appropriate in different places. And
obviously I entirely second what others have said that there
might be cases where it is legally or even morally appropriate
to use lethal force, but we might not want to do so out of
policy considerations, whether blowback or other types of
concerns.
But the AUMF as such does not have a geographic constraint.
Chairman Durbin. I think many of us viewed that in terms of
hot pursuit as opposed to a 12-year effort in far flung places
where Al-Qaeda's progeny would somehow appear. It was a little
different time and place after 9/11 and now we are looking back
at it from a different perspective.
Senator Cruz.
Senator Cruz. Thank you, Mr. Chairman. I would like to
first ask a question of General Cartwright and Colonel McSally.
For counterterrorism purposes, what is the relative value
of killing versus capturing a senior operational leader of Al-
Qaeda and how is that assessed?
General Cartwright. Again, I have to sit in the
hypothetical here, but there is a progression of a terrorist
organization generally looked at in three stages. One is
recruiting and then you have an iconic figure. In that
particular phase, eliminating that figure eliminates the
movement.
When you move into the second stage, it is generally
considered, that is where you start to build a bench so to
speak and if you kill one, another will come behind. In the
third stage it is called franchising. They start to proliferate
out and they have their own ability to generate.
After you leave the first stage, separate political
considerations, killing the leader has little value because he
or she will be replaced. You may get a particularly capable one
and it takes them awhile to recover, but generally it is
considered in second and third stages killing the leaders does
not really eliminate the movement.
Chairman Durbin. Colonel.
Colonel McSally. Sure. I will speak a little bit to the
challenges if you do choose a capture mission over a kill
mission as well. But it really does depend on the individual,
the circumstances, and the location whether it is more
desirable to kill or capture.
But let us just say we are agreeing maybe you want to
capture in more circumstances, then it does depend on the
country we are talking about and the location. It goes back to
the, is there consent or are they unwilling and unable or are
you going to tip them off when you make that call?
Let us say you then still decide we do need to do this
capture mission. That can be a very complex operation. You are
talking about bringing in special forces. As I mentioned,
sometimes the intelligence pops at a moment's notice, so you
could have them sitting at a base or offshore on a ship waiting
for weeks or months unable to do other missions, waiting for
the intelligence to come together.
Then if you order them in, they may have to fight their way
in and fight their way out, so there could be some
extraordinary civilian casualties associated even with that
mission if things go wrong.
Then of course the reality that you then have the potential
for U.S. casualties or U.S. individuals to then be captured and
the strategic implications of that. So those are all the things
that are weighed when you are considering even if you desire to
do a capture mission, sometimes the bar is way too high and the
risk is way too high and the cost is way too high both in time
and opportunity costs for those particular special capabilities
to do the capture.
Senator Cruz. Thank you. Mr. Bergen, how has in your
opinion the Obama administration focused on targeted killings
affected our ability to gather intelligence and analyze
situations in the Middle East such as in Libya or Egypt?
Mr. Bergen. I think it is a very hard question to answer,
sir, but I will make the factual observation that it was hard
to predict the Egyptian revolution. Even the people involved
did not know there was going to be a successful revolution.
But the CIA did seem to have missed the fact that a quarter
of the seats in parliament were taken by the Salafists who are
now the second largest party in Egypt.
At the end of the day, the CIA should be in the business of
strategic warning to policymakers. That is ultimately what it
should be doing.
If it is the assessment of you and your colleagues that the
CIA mission has been sort of deformed by the fact that it has
become more a paramilitary organization, I think that is a
problem.
Senator Cruz. Thank you. Now a question for Professor
Somin.
Do you see any tension between the Obama administration's
position that U.S. citizens who are captured aiding Al-Qaeda
must be tried in Article III courts instead of military
commissions but that nonetheless they can be summarily killed
with drone strikes?
Does that strike you as at all inconsistent?
Professor Somin. I do not think it is inherently
inconsistent in that when we capture somebody, if we consider
somebody as an enemy combatant and if they really are a
legitimate enemy combatant, then they can certainly be
targeted.
Once they are captured as an enemy combatant, I think the
administration could choose as a matter of policy to try these
individuals in Article III courts as opposed to doing so in
military courts though I do not think it would necessarily be
unconstitutional or illegal to go the military court route.
I guess I would say that there is not an inherent
contradiction unless the administration says not only that we
are just choosing as a matter of policy to try certain enemy
combatants in Article III courts, but actually claiming that it
is never permissible to try such individuals in military courts
which I think would probably not be correct.
Senator Cruz. Would you agree that on any analysis it is a
greater potential violation of someone's rights to take their
life than it is to capture and interrogate them?
Professor Somin. In many cases I think that is true. But I
do not think it is true categorically in that there could be a
person who is a legitimate target and therefore can be killed
on a battlefield, but if captured there are still legal limits
on the methods we can use to interrogate them. For instance, we
should not be able to engage in torture which is illegal under
domestic and international law.
Senator Cruz. All right. Let me ask a question of Professor
Somin and Professor Brooks. There has been some considerable
discussion about the potential role of a FISA-like court
dealing with either designating individuals as terrorist
leaders or having some role in drone strikes.
It strikes me that Senator Graham raised serious
constitutional questions about the Article II role of the
Commander in Chief and the appropriate ability of this Congress
to restrict the decisions of the Commander in Chief directing
military operations against foreign hostile forces.
I would be interested in both of your assessments of those
constitutional concerns and the right boundaries that would
respect those constitutional concerns.
Professor Somin. Certainly. I think everybody or almost
everybody would agree that the President has important powers
as Commander in Chief. At the same time, Congress has the
authority under Article I to make rules for the government and
regulation of the land and naval forces which I think includes
the President when he is acting in his role as Commander in
Chief.
For instance, Congress does things like restrict the kind
of weapons that can be used in a battlefield. It restricts the
treatment of prisoners when they are captured and so forth. And
therefore I think it is also permissible for Congress to
require a certain amount of process before certain kinds of
operations occur.
I think Article I gives Congress that authority just as it
gives it the authority to make the other kinds of regulations
that I noted. Obviously the fact that Congress has authority
does not mean that Congress should always exercise it to its
fullest extent. Various scholars and others have talked about
how to strike the right balance of independent review and how
that should be done.
Professor Brooks. Senator, Congress also of course has the
power to define and punish offenses against the laws of nations
and that would also be a useful mechanism in this regard.
The only thing I would add, though, is that it is a sort of
``who guards the guardians'' problem here. Clearly we all agree
that if there were to be some future President who was, say,
insane and who simply asserted that there was a war against
some perfectly innocent group of people and that that justified
the use of lethal force, we would wish there to be some
mechanism short of impeachment to try to restrain that abuse of
power.
I think the question is--I do not think that the Commander
in Chief power and the fact that the President obviously has a
great deal of discretion when it comes to armed conflicts and
foreign policy issues needs to necessarily restrain Congress
from all oversight.
I think that you can certainly design a court, particularly
if you focus on the after-the-fact review rather than the
advance approval of targeting. I think you could certainly with
relative ease devise a judicial process that would not pose any
of those problems.
Professor Somin mentioned earlier, and I think it is very
instructive and worth reading for anyone who has not had the
time to take a look at, the Israeli Supreme Court's 2006
decision on targeted killings. It is a very similar legal
system in many ways and obviously the challenges they face
domestically with regard to terrorism are far greater than
those we face, luckily for us, but that court resoundingly
rejected the notion that these decisions were the question of
whether a particular body of law applies in the first place to
a particular body of facts, that is precisely the kind of
decision that the judiciary and only the judiciary is normally
considered to be qualified to make.
Senator Cruz. I would like to thank each of the six of you
for very illuminating and insightful testimony and I would like
to thank in particular Mr. Al-Muslimi for traveling a
considerable distance of time and for presenting heartfelt and
quite powerful testimony. I thank the Chairman for conducting
this hearing.
Chairman Durbin. Thank you, Senator.
Senator Lee.
Senator Lee. Thank you very much. I just want to follow up
on one issue with Professor Somin. You note that some have
proposed developing an oversight court, something modeled after
the FISA court, for example, that would be tasked with the
responsibility of reviewing the executive's determination about
a U.S. citizen being a terrorist leader.
Some naturally worry that such confidential courts operate
without any kind of transparency, any kind of review so that
much of what they do would be completely immune from any
oversight from the public, from any kind of scrutiny.
At the same time, others would argue that it necessarily
makes a certain degree of sense to do that where you are
dealing with so sensitive a determination as to whether or not
a particular U.S. citizen is in fact a terrorist leader.
I guess my question is if Congress were to agree with the
recommendation to create such a court, a FISA-like court, how
would you recommend that it go about the very delicate task of
balancing on the one hand the need for a degree of
confidentiality and on the other hand the need for the public
to be able to understand what is happening on some level?
Is there a way that you could perhaps separate those two
out so that you could make them both harmonize?
Professor Somin. I think it is a very important question.
There may not be a way to find a perfect ideal balance. But
there are actually many situations already in the legal system
where national security information or evidence that may
impinge on somebody's privacy is held in camera by the court
and is not publicized. But at the same time the court's legal
reasoning can be publicized both for review by higher courts
and also for consideration by the public and outside experts.
So it seems to me that while particular details of factual
information or intelligence data can be held confidential, the
court's legal reasoning does not have to be. Also the general
standards that the court uses for approving or rejecting such
requests can be made public, at least to a large extent.
We do have experience with this with the FISA court, and
with other cases dealing with other national security
information. As Professor Brooks has noted, and I note it in my
testimony, there is the experience of Israel in this regard as
well. So we have a lot of models that we can potentially use to
at least reduce this tension even if we cannot totally
eliminate it.
Senator Lee. Even if that means possibly bifurcating the
proceedings or making some aspects of the determination public
and others immune from any kind of transparency?
Professor Somin. Yes, that is correct. We cannot have
perfect transparency. But this system would still have at least
somewhat more transparency than the current situation where
these decisions are made almost entirely within the executive
branch, often with no transparency at all.
When it comes to transparency, I think the best should not
be the enemy of the good.
Senator Lee. Thank you very much. Thank you, Mr. Chairman.
Chairman Durbin. Thank you, Senator Lee, and thank you
Senator Cruz and a special thanks to this panel for your
patience and Mr. Al-Muslimi, thank you for your personal
sacrifice in coming. Your testimony was extremely important to
this hearing and we thank you so much for coming here today.
Thanks to Mr. Bergen, Colonel McSally, Professor Somin,
Professor Brooks and General Cartwright. Thank you very much
for this.
This was a long-anticipated hearing and the first of its
kind in the Senate and I am sure not the last. There will be
more that is going to be discussed.
A number of groups have submitted testimony that will be
added to the record without objection, including the American
Civil Liberties Union and the Standard National, the
Constitution Project, Human Rights First, Human Rights Watch,
and the Open Society Foundations. Without objection, I will
enter their statements in the record.
[The information referred to appears as submissions for the
record.]
Chairman Durbin. Then I want to take a point of personal
privilege here to acknowledge a person in the audience. Hayne
Yoon who is sitting in the second row here. She is currently a
Deputy Federal Public Defender in Los Angeles, but she returned
for this hearing because for the last 2 years she has been on
detail to my office and served as counsel on this Constitution
Subcommittee.
Before she left, she helped to prepare today's hearing. I
hope we did well based on your standards and what you have
asked us to consider. She has made many important contributions
to our work, including improving coordination by Federal,
State, and local law enforcement in apprehending international
fugitives and planning the first ever congressional hearings on
solitary confinement and the school-to-prison pipeline which
were hearings we had previously.
Hayne, thanks so much for your fine work.
The hearing record will be held open for 1 week to accept
additional statements. Written questions for the witnesses
might also be submitted. I ask that they be submitted by the
close of business 1 week from today. We will ask the witnesses
to respond in a prompt fashion.
If there are no further comments from the panel or from my
colleagues, I thank the witnesses for attending and my
colleagues for their participation and the hearing stands
adjourned.
[Whereupon, at 6:23 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows.]
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