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

Partial transcript of Q&A with Sen. Lindsey Graham (R-S.C.) 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. Lindsey Graham (R-S.C.):
…I would just like to say for the record that no system in perfect but generally speaking I want to applaud the Obama administration’s what I think an aggressive and responsible use of the drone program particularly in parts of the world where we don’t have ground forces or a whole lot of control to make the rest of us safe.

So I don’t get to say many good things about President Obama in South Carolina but I will say I think he’s serious, I think he’s thoughtful, and I think he takes the responsibility when it comes to targeting people in a very commander-in-chief-like way.

Gen. Cartwright, as a Marine when you’re ordered into battle by your commander-in-chief, do you obey his orders?

General James Cartwright, United States Marine Corp (Ret.):
I do.

Sen. Lindsey Graham (R-S.C.):
So I find it a bit odd, quite frankly, that we’re going to give the commander-in-chief under the Constitution, by the way, the authority to order our own citizens into battle but they don’t get to go to court. You know, the Marines don’t get up to get to say, you know, “I think that’s a dumb decision. I want to go get a judge to say, ‘Hey, you shouldn’t 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.

So if you want to talk about transparency, count me in. If you want to talk about having Congress more involved in how this system works. But if you’re 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’s a situation where they get a case and they say, “Now, we don’t think you’re quite there” and that person winds up killing a bunch of Americans, there’d be outrage in this country like you’ve never seen and the court can’t defend itself. But here’s where elected officials have a different standing. The President of the United States would have to answer to the people by any mistakes he makes.

So count me in for reforming the system; count me out for basically turning the war into a crime.

Now, the doctrine of pre-emption, do you that’s a solid doctrine, Mr. Bergen, in the war on terror?

Peter Bergen, Director of National Security Studies Program, New America Foundation:
It all goes to the question of imminence, sir.

Sen. Lindsey Graham (R-S.C.):
Well, the theory being that basically when it comes to Al Qaeda and Taliban and other folks, it’s better to hit them before they hit you.

Peter Bergen, Director of National Security Studies Program, New America Foundation:
If you look at the victims of these strikes, overwhelmingly now they’re lower level members of the Taliban. So the question is do they pose an imminent threat?

Sen. Lindsey Graham (R-S.C.):
Okay, let’s talk about that. Gen. Cartwright, you’re 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 James Cartwright, United States Marine Corp (Ret.):
No.

Sen. Lindsey Graham (R-S.C.):
Why?

General James Cartwright, United States Marine Corp (Ret.):
Because it’s an area of hostility and he is a legitimate military target or they are.

Sen. Lindsey Graham (R-S.C.):
Mr. Bergen, that’s the point. Once you’re designated an enemy, we don’t have to make it a fair fight. We don’t have to wake you up if we’re going to shoot you. And that’s the point is don’t become part of an enemy, and here’s the problem, how do we know if you’re part of an enemy. That is a legitimate, honest inquiry here. So what I’m suggesting is that we kind of back off and look and see the goal we’re trying to accomplish.

Mr. Muslimi, what’s your name, sir? I don’t want to mispronounce your name.

Farea Al-Muslimi, youth activist and freelance journalist from Sana’a, Yemen:
Al-Muslimi.

Sen. Lindsey Graham (R-S.C.):
Okay. I’ve been to Yemen. It’s a country in great turmoil, do you agree with that?

Farea Al-Muslimi, youth activist and freelance journalist from Sana’a, Yemen:
A country of?

Sen. Lindsey Graham (R-S.C.):
Great turmoil. Great conflict.

Farea Al-Muslimi, youth activist and freelance journalist from Sana’a, Yemen:
It definitely have a lot of problems.

Sen. Lindsey Graham (R-S.C.):
Okay, and I understand that.

Mr. Bergen, would you have advised President Obama to call the Pakistani government up to go arrest [Osama] Bin Laden?

Peter Bergen, Director of National Security Studies Program, New America Foundation:
Well, it was discussed and it was rejected.

Sen. Lindsey Graham (R-S.C.):
Can you imagine what would have happened if it came out in the public that we told the Pakistani government, “Bin Laden’s over here. Go get him” and he got away? My party would have eaten President Obama alive. And the reason President Obama didn’t do that in all candor is you can’t trust the Pakistan government to go pick up Bin Laden.

In all due deference to your country, there are places in your country I wouldn’t tell anybody about what we’re up to because I think the person that we’re trying to capture or kill would wind up knowing about it. Your point is – why don’t we 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 that if you share this closely-held information – Col. McSally – you’re going to wind up tipping off the people we’re trying to go after, do you agree with that?

Colonel Martha McSally, United States Air Force (Ret.):
In some cases, absolutely, sir.

Sen. Lindsey Graham (R-S.C.):
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? And 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 can’t have 535 commander-in-chiefs.

So Mr. Chairman, I’m glad we’re having this debate but when it comes to the law of war – the two professors – is it fundamentally different than domestic criminal law?

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Yes, it is.

Sen. Lindsey Graham (R-S.C.):
Okay, 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 the law of war is fundamentally different. Do you agree with that?

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Absolutely.

Ilya Somin, Professor of Law at George Mason University School of Law:
Yes.

Sen. Lindsey Graham (R-S.C.):
Okay. And the goal here is to make sure that we know the difference between fighting a war and fighting a crime.

Here’s the problem for the country: There is, Mr. Bergen, no capital to conquer. There is no air force to shoot down. There is no navy to sink. We’re fighting an ideology that is transforming itself all over the globe. We need to look at the AUMF [Authorization for Use of Military Force] anew. We need to broaden the ability to go after the enemy because it’s changing day-by-day but we need to do so within the values of being an American.

And I would end with this thought: Please don’t mistake my zeal for defending the country…that I don’t have values. It was Sen. [John] McCain and myself with many others who said, “Don’t torture the detainee.” When you capture someone, we don’t cut off their heads. We give them their lawyer. That makes us better, not weaker.

So count me in for the idea of fighting the war within our values. The reason I don’t want to torture anyone is because that’s not who we’re 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’re not at war.

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