Privacy SOS

Targeting Americans for death and the breakdown of checks and balances

So we have entered the Age of Sequestration, thanks to the spectacular meltdown of Congressional bipartisanship.

This does not, however, mean that the two parties are incapable of a meeting of minds. Indeed, there was a genuinely bipartisan display at Wednesday's House Judiciary Committee hearing entitled "Drones and the War on Terror: When Can the U.S. Target Alleged American Terrorists Overseas?"

However, rather than providing evidence that, yes, the two-party system and checks and balances could be made to work effectively, the indignation uniting the Committee's Republicans and Democrats underscored just how out of whack our supposedly democratic system of government.

What were they indignant about? Committee chairman Rep. Bob Goodlatte (R-VA) spelled it out in his opening remarks:

One of President Obama’s first acts as President was to release the Bush Justice Department’s enhanced interrogation techniques memos to the public. But now he refuses to provide his Justice Department’s targeted killing memos not just to the public but even to congressional overseers.

We also invited the Justice Department to testify today. That request was denied too.

The Judiciary Committee – the body which is supposed to oversee the Department of Justice – was being profoundly snubbed and it angered Republicans and Democrats alike.

Ranking Member John Conyers (D-MI) pointed out that the Committee had continually sent letters to the President to request all legal opinions related to the drone program and that they all had top secret clearance. They were not conducting a witchhunt, but an enquiry. "All we are seeking is information to which we are entitled."

So one point of unity was the across-the-board sense that a vital Congressional oversight role was being blocked by excessive Executive Branch secrecy and the Justice Department’s "not respecting this Committee enough to send someone" (Rep. Gowdy, R-SC).

Another was the unsettling fact that Committee members had no way of knowing whether the Executive Branch was "complying with the law" (Rep. Lofgren, D-CA). Why wasn’t it sharing information with them if it felt it was acting legally? How, Rep. Deutch (D. FL) wondered and Rep. Collins (R-GA) reiterated, could Committee members debate its policy when they had no way of knowing whether it was lawful under the Constitution?

There also appeared broad agreement across party lines on a third point. How can the US government require some kind of judicial review to listen to phone calls of suspected terrorists overseas but not to kill its own citizens?

That and other questions posed by Committee members were fielded by four lawyers who spanned the legal/ideological spectrum from A – B: John Bellinger, a former legal advisor to the Bush Administration, Texas University Law Professor Robert Chesney, the Brookings Institution’s Benjamin Wittes, and Washington College of Law Professor Stephen Vladeck.

There was considerable parsing of language and meaning, but little substantial disagreement on a panel notable for its lack of legal critics of the government’s drone program. The discussion at this first hearing was narrowly focused on the issue of putting Americans on kill lists, with matters like ‘signature strikes’ – which Rep. Conyers said particularly troubled him – presumably being left for a later one.

Here’s what the panel served up:

Yes, it would be good (but it is not necessarily required) to have some kind of judicial involvement in the decision to kill an American citizen, but maybe it should be after the fact as courts do when police use lethal force, instead of a ‘prior review’ of a death sentence.

Yes, there should be some sort of a checks and balances-type role for Congress, which could perhaps legislate procedures for targeting and some kind of reporting mechanism. It would be a good idea for Congress to update the aging Authorization for the Use of Military Force (AUMF), the main pillar of the targeted killing policy.

Yes (after considerable hemming and hawing) the 4th, 5th and 8th Amendments probably do apply to citizens overseas but, in Bellinger’s words, "the extent of those rights is unclear."

Yes, the killing of US persons who are senior leaders of al Qaeda is legal. The question is, as Vladeck put it, "not whether, but when."

Yes, the long lead time given to the notion of “imminent” in the Justice Department’s White Paper might be necessary, but it can be “troubling” – especially to our allies.

Yes (after considerable hemming and hawing) our drone policy might mean that Russia has the right to take out a 'Chechnyan terrorist' who is seen as an imminent threat.

Maybe due process involves the judiciary. Bellinger gave support to Attorney Holder’s novel interpretation that it could be done by the Executive Branch alone. Vladick and Rep. Nadler (D-NY) didn’t think so.

Maybe the drone policy is legal under international law. Certainly international law should be considered, especially since, in Bellinger’s words, "most other countries don’t agree with our position when we say we are acting in accordance with international law" and our allies might stop sharing intelligence information.

The remedy? To have a more convincing pitch. The Bush administration, Bellinger said, made a big effort to tell foreign countries it was acting lawfully. The Obama Administration should do the same thing.

But as Rep. Deutch (D-FL) commented, how is it possible to have that conversation internationally when we can’t even decide whether the policy is legal under the Constitution?

There were a few other times when Committee members pushed back against what they were hearing. When Benjamin Wittes said that collateral death happens in hostage situations as well as drone strikes, Rep. Goodlatte (R-VA) pointed out that the 'imminent danger' to hostages is very real, but it is not clear that this is the case in targeted killings.

Wittes later agreed that there were problems with the White Paper’s use of the word 'imminent' and there was no clear legal basis for it. He also declared that the "biggest hole is not a legal hole but a procedural hole – what hurdles must you go through to decide someone can be targeted?"

Who knows? And who knows the answer to the question posed by Rep. Scott (D-Virginia) – "What resource is there for someone on the list by mistake?"

The session ended before the Committee could respond to Rep. Collins (R-GA) who questioned the notion of an after-the-fact judicial enquiry to see if a particular strike wiping out an American was legitimate or not: If we don’t know the decision-making process who would be held culpable – the drone operator?

A hearing where no one really knows what they are talking about and all that was once solid has melted into air is bound to project the aspect of a government unhinged. Just how unhinged things could be was suggested by Rep. Gohmert’s surreal soliloquy.

The Texas Republican began by expressing his outrage at the Justice Department for not permitting the Committee to carry out its oversight role. He then mentioned that Anwar al-Awlaki had once led prayers for Congressional staffers on Capitol Hill.

Could he be have been "hit" in the US if he had managed to get back here?

Benjamin Wittes replied that he should in that case be arrested by the FBI and prosecuted.

But "what if someone was working closely with the President?" Gohmert said that there have been ‘known terrorists’ visiting the White House, a fact that would be very politically embarrassing if it came to light.

He went on: What if the President says a person is an imminent threat just to wipe him out and avoid political embarrassment? "Not everyone under political pressure acts like a patriot."

At this point he was cut off on the grounds that his time was up.

The secrecy that the Obama Administration has imposed on itself may give this line of questioning a certain resonance. For who really knows what our government is capable of these days?

© 2021 ACLU of Massachusetts.