The House Judiciary Committee held a full member hearing today on when it is acceptable for the government to designate a U.S. citizen for targeted killing – the first hearing to focus specifically on this hot-button issue. Despite the session's serious shortcomings, it was a small step towards some modicum of Congressional oversight of a program that remains shrouded in secrecy. The hearing included four expert witnesses, all of whom contribute to the right-leaning website Lawfare. The Department of Justice, meanwhile, was invited to attend but declined to show up, much to the frustration of many committee members.
The session was remarkable for the near-constant agreement between three of the four witnesses – lawyers John Bellinger and Robert Chesney and Brookings Institution scholar Benjamin Wittes – regarding issues such as the constitutionality of killing Yemeni cleric and U.S. citizen Anwar al-Awlaki in a 2011 drone strike, as well as the reasoning behind the recently leaked DOJ white paper summarizing the secret Office of Legal Counsel opinions that authorize lethal strikes against American citizens. Little was gained by having these three similar viewpoints on the panel, especially at the exclusion of human rights experts or those actually affected by U.S. drone strikes.
"Where were the victims, where were representatives of civil society in the affected countries?" asks Andrea Prasow, senior counterterrorism counsel and advocate with Human Rights Watch, in an email. She suggests that Congress could have invited family members of Anwar al-Awlaki to testify, but "instead, the only congressional hearing to date on the preeminent legal and political issue of our time consisted of four American men who are participants in the same legal blogging project." (That blogging project once somewhat notoriously posted a user-submitted photo of a tasteless "drone cake," with an accompanying joke referencing their site's motto.)
Also remarkable was what was missing from the discussion – namely, any serious questioning of the fundamental logic of the war on terror, or any suggestion that it may ever come to an end from either members of Congress or the witnesses. Instead, the witnesses argued that Congress should update the 2001 Authorization for the Use of Military Force to better fit the new realities of the war on terror, with barely a word that the drone-based U.S. foreign policy which has resulted in 4,700 deaths, by Sen. Lindsay Graham's own admission, might itself be the problem.
"The lawyers at this hearing made the case for this lethal authority during wartime, but the problem is that there's no end in sight to this war," says Naureen Shah, lecturer in law at the Human Rights Institute at Columbia University Law School, in an email. "The war against Al Qaeda is at best a war against groups with a shared ideology, but on that basis, the war and the authority to kill citizens on U.S. soil could last lifetimes."
The leaked white paper revealed that the Obama administration has claimed it has the power to kill any U.S. citizen who is deemed a senior operational leader of al Qaeda, who poses an "imminent threat" and whose capture is "infeasible" – though those terms are vaguely defined to the point of near-meaninglessness. John Brennan, Obama's nominee to head the CIA, has refused to say whether this broad authority extends to U.S. soil. Today's hearing brought little clarity to that concern, though Steve Vladeck, the fourth witness, said the infeasibility of capture requirement would likely prohibit a targeted killing within the United States.
Members of Congress have asked at least 19 times for the Office of Legal Council memos that theoretically contain the precise legal reasoning behind targeted killing, but have been stonewalled by the Obama administration at every turn.
The powers discussed in this morning's committee hearing are some of the most disturbing powers a government can claim over its citizens. As commentator Glenn Greenwald recently wrote, the mere fact that the public doesn't know if this administration believes it has the right to extra-legally kill U.S. citizens in secret within the boundaries of the United States "shows just how extreme the degradation of U.S. political culture is." That the so-called war in which the U.S. is engaged is likely to last decades makes the lethal presidency even more dangerous.
As Shah says in her email, "Can you imagine if, during the Cold War, the government had refused to rule out killing U.S. citizens on U.S. soil?"
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