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

Partial transcript of Q&A with Sen. Mike Lee (R-Utah) 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. Mike Lee (R-Utah):
…I’d 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 argued that because those 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. Now, this puts us in an interesting spot. You know, 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’s 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 of kind of an adequate procedure that can be used for determining whether somebody is in fact a terrorist leader?

Ilya Somin, Professor of Law at George Mason University School of Law:
Yes, I do agree and I think that’s the central issue that I pose in my testimony and some of the other witnesses have as well that if somebody really is a terrorist that’s part of a group that’s at war with us and they are a legitimate target even if they’re not an imminent threat, as Professor Brooks said, even if they’re sleeping in their bed. Osama bin Laden, I think, was asleep when he was targeted but that didn’t 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 as one mechanism that can 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 doesn’t mean the issue should just be completely left up to the discretion of the President and his subordinates.

Sen. Mike Lee (R-Utah):
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?

Ilya Somin, Professor of Law at George Mason University School of Law:
So some of the other witnesses may be more qualified than I am to speak to that question. I think the difficult issue is so far the administration hasn’t made public a lot of its procedures so I join with all of the many people who already at this hearing stated that more publicity on this is desirable, obviously consistent protecting classified intelligence sources and the like. Once we know more, we might be in a better position to assess whether the procedures are adequate or not.

Sen. Mike Lee (R-Utah):
Okay. I appreciate that. I want to ask a question that I’ll give each of you an opportunity to answer. Given the time constraints that we face, you have to be a little bit short…And my question is this: What do you think are the obstacles – the principal obstacles – to providing for some kind of 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?

General James Cartwright, United States Marine Corp (Ret.):
There are so many scenarios here that you could wander your mind through but the challenge if you’re in a declared area of hostility, which is the basis of the question that Sen. Graham was asking, then you have a set of rules even associated with Americans that might be in that population of targetable people, and it would be difficult to stop and have a court case for each one of them.

When you’re outside 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 backside – in other words, 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 state of the game to address many of the question like the Yemeni examples that we’ve heard today?” Rather than putting a court in the middle of a war construct, which would I think absent constitutional issues I’d defer.

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Senator, I think that there are no obstacles in some sense to creating a more fair and transparent system for ensuring, 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 that we’ve heard about the use of remotely-piloted aircraft to ensure that we’re getting the people we target and not innocent civilians, they’re only as good as our intelligence and they’re only as as wise as our strategy obviously.

That said, I think the biggest political barriers that stand 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 of there is war and there is crime, and never the two shall meet and there are completely different legal systems and there are completely different rules.

What we have here right now with globalized terrorism both 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 crimes. That’s just the reality – that it has dimensions of both and requires tools – both military tools at times and also tools that are more traditionally associated with intelligence and law enforcement like disrupting financing, communications.

I think if we can get past that – right now, we’ve got a lot of people just talking right past each other because we say “Well, in a war you can do this” and everybody says “Well, that’s right.” And you say, “Well, if you don’t have a war, you can’t do that” and everybody says “That’s right.” But then the trouble is we have a lot of trouble deciding whether we should apply the war paradigm or the crime paradigm.

Sen. Mike Lee (R-Utah):
Well, certainly, you’re not disputing that there are some bright lights that go on – what you’re talking about – domestic soil, U.S. citizens?

Rosa Brooks, Professor of Law at Georgetown University Law Center:
Absolutely, Senator. On the extremes, I think we’ve got a lot of pretty easy issues. It’s on the middle that the issues get harder and we need to get more creative about developing hybrid legal mechanisms.

Ilya Somin, Professor of Law at George Mason University School of Law:
…I think there are two obstacles to ensuring a better system here. One is that we’re necessarily relying on intelligence that in some cases is going to be iffy. Secondly, the review mechanism which should be independent must nonetheless act reasonably swift, obviously otherwise you might lose the opportunity to attack a legitimate target. These are genuine problems but they’re not insuperable. We have overcome to a large extent with the FISA court. Scholars such as Amos Guiora of the University of Utah…and as he points out the government of Israel does in fact have such a review mechanism for their targeted killing and it’s worked at least in his view and that of other scholars reasonably well over the years. So I’m not saying that we can adopt the exact methods that they used. 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 certainly. Thank you.

Colonel Martha McSally, United States Air Force (Ret.):
I do believe the first effort needs to be in more transparency in the process that we are using in order to identify some of these 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’s moments, hours, days, weeks, months, or even years before the stars line up that we meet all the criteria – we’ve identified the individual with the right collateral, low civilian casualties, in the right geographic locations, with the right weapon. So if that happens, it has go to be on the front end to name somebody on that target list outside of an area of active combat operations.

Sen. Mike Lee (R-Utah):
Limited perhaps to the finding that they’re a terrorist leader…

Colonel Martha McSally, United States Air Force (Ret.):
And then you have to let the targeting process to go. It’s 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 have been approved, they’re 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 anything of that additional oversight needs to be on the front end and outside of our traditional combat operation areas.

Peter Bergen, Director of National Security Studies Program, New America Foundation:
I think there would be an advantage to have a sort of, as Gen. Cartwright suggested, to 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 victims and family. You could 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 war and there are innocents killed, doesn’t matter where that takes place, we as a country have tended to compensate people when we can.

Farea Al-Muslimi, youth activist and freelance journalist from Sana’a, Yemen:
I agree with that point. In the last few years since the strike drones and target killing have been used in Yemen, actually AQAP has been stronger. So it’s very hard to think of how this can actually be 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 – apologies to the civilians and pay compensations for the civilians’ relatives who were killed and, more importantly, everywhere where a drone strike has killed civilians I think there has to be at least a sort of compensation to build a hospital or school in a country that is lacking that school or hospital.

Sen. Mike Lee (R-Utah):
…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, and at the same time others would argue that it necessarily makes a certain degree of sense to do that where you’re dealing with so sensitive determination as to whether or not a particular U.S. citizen is in fact a terrorist leader. So 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 it go about the very delicate task of balancing on the one hand the need for a degree of confidentiality, on the other hand the need for the public to be able to understand what is happening on some level, and is there a way that you could perhaps separate those two out so that you can make them both harmonize?

Ilya Somin, Professor of Law at George Mason University School of Law:
I think it’s 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 or factual information or intelligence data that can be held confidential, the court’s legal reasoning doesn’t have to be and 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, with other cases dealing with other national security information.

And 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 can’t totally eliminate it.

Sen. Mike Lee (R-Utah):
Even if that means possibly bifurcating proceedings or making some aspects of the determination public and others immune from any kind of transparency?

Ilya Somin, Professor of Law at George Mason University School of Law:
Yes, that is correct. We can’t have perfect transparency but this system would still have at least some more transparency than the current situation where these decisions are made almost entirely within the executive branch often with no transparency at all. So when it comes to transparency, I think that that should not be the enemy of the good.

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