Transcript: Professor Ilya Somin’s testimony on drones & targeted killing – Senate Judiciary Subcommittee on April 23, 2013

Partial transcript of testimony by Ilya Somin, Professor of Law at George Mason University School of Law, on the “Drone Wars: The Constitutional and Counter-Terrorism Implications of Targeted Killing”. The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights hearing was held on April 23, 2013:

…In my testimony, I’d like to focus on two key points. First, that the use of drones for targeted killing in the war on terror is not in of itself illegal or immoral. But second, that there are serious legal and policy issues that arise from the problem of ensuring that we’re actually choosing the right 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.

So 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 as authorized by the Authorization for the Use of Military Force [AUMF] established in 2001. At various times, the President, Congress, and the Supreme Court have all recognized that the current conflict qualifies as a war.

And certainly, in many past wars, combatants have legitimately resorted to targeted killing. For example during World War II, the United States targeted Japanese Admiral [Isoroku] 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 deserve greater immunity somehow from targeting than that enjoyed by military officers who at least pretend to obey the laws of war whereas the terrorists clearly do not.

In addition, I think it’s 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 inherently unethical, the issue of choosing our 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 doesn’t have a clear command structure and therefore it’s 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 attracted the ire of leading government officials. This is particularly problematic from a constitutional point of view if there is abuse of 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, I think, raise serious questions about whether we’re doing enough to ensure that we’re 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, and studies by various people, including Mr. [Peter] Bergen, who will testify later, suggest that only a small percentage of these individuals who are killed actually were senior Al Qaeda leaders.

Secondly, 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 doesn’t 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 discussed 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’re backed by sufficient evidence. It could, perhaps, be similar to the court currently used to authorize the FISA [Foreign Intelligence Surveillance Act] system, surveillance, and wiretapping in the United States.

Whatever solution we opt for, it’s probably not possible to have a perfect system that avoids all mistakes. What we should aim for is a system 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.

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