Transcript: Q&A with Sen. Chuck Grassley on drones & targeted killing – Senate Judiciary Subcommittee on April 23, 2013

Partial transcript of Q&A with Sen. Chuck Grassley (R-Iowa) 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:

Sen. Chuck Grassley (R-Iowa):
…Is the current AUMF [Authorization for Use of Military Force] 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?

Ilya Somin, Professor of Law at George Mason University School of Law:
So without knowing the full details of all of the targeted strikes that have been done, it’s hard for me to say which of them, if any, can’t be covered by the AUMF though I suspect based on what’s 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 aren’t covered by the text of the AUMF.

Ideally, what we want is an ability to target organized groups that are waging war against us but at the same time not give the President the blank check to target whatever groups he or someone else in the administration might consider it might be a good idea to go after even if they’re not really in a war-like posture against us.

So I don’t think you should completely repeal the AUMF but some revisiting and clarification is definitely desirable.

Sen. Chuck Grassley (R-Iowa):
Do you think the Constitution provides sufficient basis for the President to order these targeted strikes absent reliance upon that law?

Ilya Somin, Professor of Law at George Mason University School of Law:
It depends on what strikes we’re talking about. So 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 want strikes against groups that are not covered by the AUMF in the way that we have seen at least in what’s available in the public record.

Sen. Chuck Grassley (R-Iowa):
I didn’t direct this to you, Col. McSally, but what’s your view on my last question about the Constitution versus absence reliance upon the AUMF?

Colonel Martha McSally, United States Air Force (Ret.):
Sir, I’m 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 of itself. Where AUMF comes in is when you don’t 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 we’re talking about, it was a very high-level in order to make the case that individuals or organizations fit the criteria the AUMF. That bar was very high and those discussions were at the very highest level of the chain of command before anybody was approved.

Sen. Chuck Grassley (R-Iowa):
My next question for Professors Brooks and Somin. You both suggested today that one of the problems with the current drone strike procedure is oversights, 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 the 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’re 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’s targeted killing program? And then let me follow up – would such a court be constitutional?

Ilya Somin, Professor of Law at George Mason University School of Law:
…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 in some detail.

I think the people on it not being experts can be overcome simply by appointing lawyers and others who do in fact have a background in relevant military issues.

There’s 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.

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Senator, I agree. I think that one could devise such a court that would pass constitutional muster. I would note, however, that many of the issues associated with the court that would approve in advance targeting decisions could be eliminated by focusing instead on a court – if Congress were to create a statutory cause of action for damages for those who have been injured or killed in abuse or mistake in drone strikes, you could have a court that reviews such strikes after the fact, which 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.

I think that there is no inherent reason also that such a court would need to operate in the extreme degree of secrecy that we’ve seen in the FISA court. There’s no inherent reason that you couldn’t have at least de-classified portions of opinions.

And I think that 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 towards reassuring both U.S. citizens and the world more generally that our policies are in compliance with rule of law norms.

Sen. Chuck Grassley (R-Iowa):
…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’s reluctance 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 the people know how those officials determine who to kill during targeted drone strikes? And second, what do you think would be the proper burden of proof in these targeted drone strikes?

Ilya Somin, Professor of Law at George Mason University School of Law:
Senator, I think both good questions. Like many of the other panelists and Senators in 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 think – I’m not sure I have a clear opinion on the exact precise standard. Realistically, it probably should be lower than the “beyond a reasonable doubt” standard that we use in criminal case. The nature of war probably doesn’t allow proof to that high level. But it should certainly be more than 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’re not targeting people recklessly and that we have at least substantial and extensive intelligence backing the decision.


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