[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
RISE OF THE DRONES II: EXAMINING THE LEGALITY OF UNMANNED TARGETING
=======================================================================
HEARING
before the
SUBCOMMITTEE ON NATIONAL SECURITY
AND FOREIGN AFFAIRS
of the
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
APRIL 28, 2010
__________
Serial No. 111-120
__________
Printed for the use of the Committee on Oversight and Government Reform
Available via the World Wide Web: http://www.fdsys.gov
http://www.house.gov/reform
----------
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
EDOLPHUS TOWNS, New York, Chairman
PAUL E. KANJORSKI, Pennsylvania DARRELL E. ISSA, California
CAROLYN B. MALONEY, New York DAN BURTON, Indiana
ELIJAH E. CUMMINGS, Maryland JOHN L. MICA, Florida
DENNIS J. KUCINICH, Ohio MARK E. SOUDER, Indiana
JOHN F. TIERNEY, Massachusetts JOHN J. DUNCAN, Jr., Tennessee
WM. LACY CLAY, Missouri MICHAEL R. TURNER, Ohio
DIANE E. WATSON, California LYNN A. WESTMORELAND, Georgia
STEPHEN F. LYNCH, Massachusetts PATRICK T. McHENRY, North Carolina
JIM COOPER, Tennessee BRIAN P. BILBRAY, California
GERALD E. CONNOLLY, Virginia JIM JORDAN, Ohio
MIKE QUIGLEY, Illinois JEFF FLAKE, Arizona
MARCY KAPTUR, Ohio JEFF FORTENBERRY, Nebraska
ELEANOR HOLMES NORTON, District of JASON CHAFFETZ, Utah
Columbia AARON SCHOCK, Illinois
PATRICK J. KENNEDY, Rhode Island BLAINE LUETKEMEYER, Missouri
DANNY K. DAVIS, Illinois ANH ``JOSEPH'' CAO, Louisiana
CHRIS VAN HOLLEN, Maryland
HENRY CUELLAR, Texas
PAUL W. HODES, New Hampshire
CHRISTOPHER S. MURPHY, Connecticut
PETER WELCH, Vermont
BILL FOSTER, Illinois
JACKIE SPEIER, California
STEVE DRIEHAUS, Ohio
JUDY CHU, California
Ron Stroman, Staff Director
Michael McCarthy, Deputy Staff Director
Carla Hultberg, Chief Clerk
Larry Brady, Minority Staff Director
Subcommittee on National Security and Foreign Affairs
JOHN F. TIERNEY, Massachusetts, Chairman
CAROLYN B. MALONEY, New York JEFF FLAKE, Arizona
PATRICK J. KENNEDY, Rhode Island DAN BURTON, Indiana
CHRIS VAN HOLLEN, Maryland JOHN L. MICA, Florida
PAUL W. HODES, New Hampshire JOHN J. DUNCAN, Jr., Tennessee
CHRISTOPHER S. MURPHY, Connecticut MICHAEL R. TURNER, Ohio
PETER WELCH, Vermont LYNN A. WESTMORELAND, Georgia
BILL FOSTER, Illinois PATRICK T. McHENRY, North Carolina
STEVE DRIEHAUS, Ohio JIM JORDAN, Ohio
STEPHEN F. LYNCH, Massachusetts JEFF FORTENBERRY, Nebraska
MIKE QUIGLEY, Illinois BLAINE LUETKEMEYER, Missouri
JUDY CHU, California
Andrew Wright, Staff Director
C O N T E N T S
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Page
Hearing held on April 28, 2010................................... 1
Statement of:
Anderson, Kenneth, professor of law, Washington College of
Law, American University, member, Hoover Task Force on
National Security and Law, the Hoover Institution, Stanford
University; Mary Ellen O'Connell, Robert and Marion Short
professor of law, Notre Dame University; David Glazier,
professor of law, Loyola Law School; William C. Banks,
director, Institute for National Security and
Counterterrorism, Syracuse University, Board of Advisers
Distinguished professor of law and professor, Public
Administration, Maxwell School of Citizenship and Public
Affairs.................................................... 7
Anderson, Kenneth........................................ 7
Banks, William C......................................... 34
Glazier, David........................................... 26
O'Connell, Mary Ellen.................................... 18
Letters, statements, etc., submitted for the record by:
Anderson, Kenneth, professor of law, Washington College of
Law, American University, member, Hoover Task Force on
National Security and Law, the Hoover Institution, Stanford
University, prepared statement of.......................... 9
Banks, William C., director, Institute for National Security
and Counterterrorism, Syracuse University, Board of
Advisers Distinguished professor of law and professor,
Public Administration, Maxwell School of Citizenship and
Public Affairs, prepared statement of...................... 36
Glazier, David, professor of law, Loyola Law School, prepared
statement of............................................... 28
O'Connell, Mary Ellen, Robert and Marion Short professor of
law, Notre Dame University, prepared statement of.......... 20
Tierney, Hon. John F., a Representative in Congress from the
State of Massachusetts, prepared statement of.............. 3
RISE OF THE DRONES II: EXAMINING THE LEGALITY OF UNMANNED TARGETING
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WEDNESDAY, APRIL 28, 2010
House of Representatives,
Subcommittee on National Security and Foreign
Affairs,
Committee on Oversight and Government Reform,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m. in
room 2154, Rayburn House Office Building, Hon. John F. Tierney
(chairman of the subcommittee) presiding.
Present: Representatives Tierney, Welch, Foster, Quigley,
Flake, Duncan.
Staff present: Andy Wright, staff director; Boris Maguire,
clerk; Talia Dubovi, counsel; LaToya King, fellow; Aaron
Blacksberg and Bronwen De Sena, interns; Adam Fromm, minority
chief clerk and Member liaison; Stephanie Genco, minority press
secretary and communication liaison; Tom Alexander, minority
senior counsel; Christopher Bright, minority senior
professional staff member; and Renee Hayes, minority Brookings
fellow.
Mr. Tierney. A quorum being present, the Subcommittee on
National Security and Foreign Affairs' hearing entitled, ``Rise
of the Drones II: Examining the Legality of Unmanned
Targeting,'' will come to order.
I ask unanimous consent that only the chairman and ranking
member of the subcommittee be allowed to make opening
statements. Without objection, so ordered.
I ask unanimous consent that the hearing record be kept
open for five business days, so that all members of the
subcommittee will be allowed to submit a written statement for
the record. Without objection, so ordered.
And I ask unanimous consent that written testimony from the
American Civil Liberties Union, Ms. Hina Shamsi and Mr. John
Radsan, be submitted for the record. Without objection, so
ordered.
Good morning again. Today the subcommittee continues its
oversight of the use of unmanned weapons systems in the
conflict in Afghanistan and around the globe. On March 23rd,
the subcommittee held its first hearing on this emerging issue.
We heard from a number of experts who testified to the wide
array of issues implicated by the use of drones, including
operational, political and ethical questions. Today we will
take a closer look at one important aspect of drone use: the
legality of using unmanned weapons to target individuals who
pose a threat to our national security.
When the United States ratified the Geneva Conventions in
1955, the Senate Committee on Foreign Relations characterized
the agreements as follows: ``As a landmark in the struggle to
obtain for military and civilian victims of war, a humane
treatment in accordance with the most approved international
usage. The United States has a proud tradition of support for
individual rights, human freedom, and the welfare and dignity
of man. Approval of these conventions by the Senate would be
fully in conformity with this great tradition.''
Warfare has changed significantly since the Geneva
conventions were written. But the ideals cited by the Senate
Committee in 1955 have not. Today we will examine how these
laws apply in modern times. The increasing reliance on unmanned
weapons to target individuals has been well documented in the
press. Over the past decade, the number of unmanned vehicles
used by the Department of Defense has gone from a few hundred
to several thousand.
Drones have been credited with eliminating senior leaders
of the Taliban and other insurgent groups. And accounts of the
recent addition of an American citizen to the target list have
received widespread attention. These reports have raised
serious questions about whether targeted killing and drone use
comport with the relevant international and domestic laws.
The use of unmanned weapons to target individuals, and for
that matter, the targeting of individuals in general, raises
many complex legal questions. We must examine who can be a
legitimate target, where that person can be legally targeted
and when the risk of collateral damage is too high. We must ask
whether it makes a difference if the military carries out an
attack or whether other government entities, such as the
Central Intelligence Agency, may legally conduct such attacks.
We must ensure that the administration's understanding of
the authorities granted to it by Congress do not exceed what
Congress intended.
We have here today a distinguished panel of legal experts
to help answer some of these questions. I understand that you
are not going to agree on all of the answers, and probably not
going to be able to give us totally all the answers. But we are
looking to learning quite a bit from your conversation.
On March 25th, the State Department Legal Adviser Harold
Koh gave a speech at the annual meeting of the American Society
of International Law, in which he affirmed this
administration's commitment to following international law. In
his words, this is a commitment to ``following universal
standards, not double standards.''
It is in this context, then, that we turn to our witnesses
today, with the understanding that the United States is
committed to following international legal standards, and that
our interpretation of how these standards apply to the use of
unmanned weapons systems will set an example for other nations
to follow. I do not expect we will be able to answer any of
these complex questions today. But I do hope that this will be
the beginning of a conversation, one that this committee will
continue with members of the administration, including Legal
Adviser Koh.
And with that, I defer to Mr. Flake for his opening
remarks.
[The prepared statement of Hon. John F. Tierney follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Flake. I thank the chairman, and I thank the witnesses
for coming.
Since we met last, obviously the administration has gone on
record to state that the use of unmanned drones in combat is
legal under international law. I look forward to hearing some
further clarification.
I look forward to hearing from Mr. Anderson. He was here
last time as a minority witness, and now he is a majority
witness. I hope that the Republicans in Congress follow the
same trajectory soon. Inside joke.
But anyway, we are glad to have you all here and appreciate
your coming and testifying, and for Mr. Anderson coming back.
Thanks.
Mr. Tierney. I could say that it shows that it is not the
Senate, we can actually do things and agree. [Laughter.]
Let me introduce our witnesses from whom we will be
receiving testimony today.
First on our panel is Mr. Kenneth Anderson, who was in fact
with us at our last hearing. He is a professor at Washington
College of Law at American University and a research fellow at
Stanford University's Hoover Institution. He is an authority on
international human rights, war, armed conflict and terrorism.
He testified, as I said, at our first hearing. He has also
previously served on the board of directors of America's Watch,
the precursor to Human Rights Watch and is the founder and
former director of the Human Rights Watch Arms Division. He
holds a B.A. from UCLA and a J.D. from Harvard University.
Ms. Mary Ellen O'Connell is the Robert and Marion Short
professor of law at the University of Notre Dame Law School.
Ms. O'Connell's primary research focuses on international legal
regulation of the use of force, as well as conflict and dispute
resolution. She is the author of The Power and Purpose of
International Law, as well as three case books on international
law, and is active in a number of international law
organizations, including the American Society of International
Law and the Council on Foreign Relations.
Ms. O'Connell earned her B.A. from Northwestern University
and was awarded a Marshall Scholarship for study in Britain
where she received a Masters of science in international
relations from the London School of Economics and an LLB from
Cambridge University. She earned her J.D. from Columbia
University.
Mr. David Glazier is a professor of law at Loyola Law
School in Los Angeles. Prior to joining Loyola Law School,
Professor Glazier was a lecturer at the University of Virginia
School of Law and a research fellow at the Center for National
Security Law, where he conducted research on national security,
military justice and the law of war. Before attending law
school, Mr. Glazier served 21 years as a surface warfare
officer in the U.S. Navy. In that capacity, he commanded the
USS George Phillip, served as the Seventh Fleet staff officer
responsible for the U.S. Navy-Japan relationship and
participated in U.N. sanctions enforcement against Yugoslavia
and Haiti.
Mr. Glazier holds a B.A. in history from Amherst College,
earned an M.A. from Georgetown University and holds a J.D. from
the University of Virginia Law School.
Mr. William Banks is the founding director of the Institute
for National Security and Counter-Terrorism at Syracuse
University, where he is also on the board of advisors, a
distinguished professor of law and a professor of public
administration in the Maxwell School of Citizenship and Public
Affairs. He is recognized internationally as an expert in
constitutional law, national security law and counter-
terrorism.
Mr. Banks authored a leading text in the field in 1990
entitled National Security Law. In 2007, he published a second
leading textbook entitled Counterterrorism Law, to help define
that emerging field as well. He is also editor and chief of the
Journal of National Security Law and Policy. He holds his B.A.
from the University of Nebraska and received his J.D. from the
University of Denver.
So again, we have quite a bit of brainpower being thrust
upon us here today, and we do appreciate your taking the time
and making yourselves available to share with us that
substantial expertise.
It is the policy of this subcommittee to swear in our
witnesses before they testify, so I ask that you please stand
and raise your right hands.
[Witnesses sworn.]
Mr. Tierney. The record will please reflect that all the
witnesses have answered in the affirmative.
I can tell all of you, and remind Mr. Anderson, that your
complete written statement will be in the record by agreement,
unanimous consent of the committee. We ask that you try to keep
your opening remarks to about 5 minutes if you could. You will
see the light is green for the first 4 minutes; amber for the
fifth minute, then red when it is about the time we would like
you to come to not a screeching halt, but a nice conclusion of
your remarks, so that we can have an opportunity to have a
colloquy back and forth and ask some questions.
So if that is understood, Mr. Anderson, would you please
begin with your remarks?
STATEMENTS OF KENNETH ANDERSON, PROFESSOR OF LAW, WASHINGTON
COLLEGE OF LAW, AMERICAN UNIVERSITY, MEMBER, HOOVER TASK FORCE
ON NATIONAL SECURITY AND LAW, THE HOOVER INSTITUTION, STANFORD
UNIVERSITY; MARY ELLEN O'CONNELL, ROBERT AND MARION SHORT
PROFESSOR OF LAW, NOTRE DAME UNIVERSITY; DAVID GLAZIER,
PROFESSOR OF LAW, LOYOLA LAW SCHOOL; WILLIAM C. BANKS,
DIRECTOR, INSTITUTE FOR NATIONAL SECURITY AND COUNTERTERRORISM,
SYRACUSE UNIVERSITY, BOARD OF ADVISERS DISTINGUISHED PROFESSOR
OF LAW AND PROFESSOR, PUBLIC ADMINISTRATION, MAXWELL SCHOOL OF
CITIZENSHIP AND PUBLIC AFFAIRS
STATEMENT OF KENNETH ANDERSON
Mr. Anderson. Thank you, Mr. Chairman, and thank you to the
committee for having us here today.
The last time that this committee held a hearing on this
subject, I was a very strong voice of criticism of the
administration and its senior lawyers for not having expressed
any views as to the legality of the use of drones and targeted
killing practices and the whole cluster of issues that we are
in fact here to discuss today. I have been a very sharp critic
of this, and in fact, was before this committee.
I am delighted to report, as everyone here knows, that a
few days after that, and not in response to this, I know that
this policy had been under consideration for a very long time
at the State Department, Harold Koh, the Legal Adviser to
State, delivered a speech in which he addressed these issues.
And I am both delighted that the issues have been raised
publicly by the administration, by its most senior
international lawyer, and as well, I am myself very happy with
the contents. I am in the, I guess I would say, unaccustomed
position of attempting somewhat to channel Legal Adviser Koh on
this occasion.
He said in those remarks that there were four objections
that he wanted to address in relation to targeted killing. One
was that the very act of targeting a particular leader was
itself a violation of the laws of war. And quite strikingly, in
addressing that objection, he went to state practice. He didn't
cite directly to law as such, he didn't cite court cases. He
cited American state practice in the Second World War as a
basis for stating that this was not contrary to international
law, which I thought was actually quite striking in referring
to the actual ways in which states behave as a source of law in
these areas.
Second, he addressed the question of, is there something
just really not OK, morally wrong or reprehensible or legally
wrong about the use of high advance weaponry drones. And he
said no, there is nothing particular about weapons systems,
except in a very few cases of indiscriminateness, that will
outlaw them. And being high-tech, and in fact, this is all good
in this area, because it allows discrimination in targeting
that is otherwise not there.
Third, he addressed the question of whether this is extra-
judicial execution, and hence in violation of international
treaties and covenants and so on, and whether in particular
there is an obligation to provide process or warning to people
before targeting them where they have been identified by the
United States as targets.
And here he introduced something that I think is of deep
importance as a statement of U.S. policy. Because he very
clearly distinguished between saying it is lawful to do this,
both in an armed conflict governed by the technical body of the
laws of war, and it is also lawful to do so when the United
States is engaged in legitimate international self-defense as a
category of the use of force separate from armed conflict,
specifically as a technical matter. And he defended targeting
without warning in each of those cases treated separately.
And then finally, and I think of great importance within
the United States, the United States has had a long ban on
assassination within its domestic rules. But it has never
defined what it means by that. And he was very careful to
reaffirm something that was said by his predecessor in 1989,
Abraham Sofaer, and said that this is not assassination within
the meaning of U.S. law.
Now, I support all of those, and in particular the
distinction that was drawn between armed conflict and
legitimate self-defense as a category, and would reiterate what
I raised in the last hearing, which is, this discussion is not
really about the use of drones on the battlefield in the
traditional, ordinary sense as used by the U.S. military. It is
for them a weapons platform like any other, and all the
considerations of collateral damage and all the usual stuff
that goes into targeting applies. But they don't really think
of it any differently, as one can see from the last hearing.
The question here is, who and where. And it's the question,
first of all, of whether it is lawful to target off of what one
might consider a traditional battlefield, and whether there is
in fact any legal distinction between going after your enemies,
wherever they happen to be, on the one hand, and the CIA
attacking people outside of traditional zones.
So let me bring this to a close by saying that the
discussion that we are having is really the discussion about
the lawfulness of the CIA using these kinds of weapons outside
of the traditional battlefields. And that if for any reason
that is considered not to be OK, that is considered to be
criminal, that is considered to be a war crime, somebody had
better tell the CIA about it, somebody had better tell the
President about it, somebody had better tell Vice President
Biden about it. Because they are all enthusiastic participants
in this.
So it is a perfectly legitimate question to raise whether
this is OK and lawful and the rest. But whatever the answer is,
we should not leave the people who are carrying this out in
legal uncertainty as to what that answer is.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Anderson follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Tierney. Thank you, Mr. Anderson.
Mr. Tierney. Ms. O'Connell.
STATEMENT OF MARY ELLEN O'CONNELL
Ms. O'Connell. Thank you very much, Mr. Chairman, for the
invitation to speak with you today about the law governing the
use of weaponized unmanned aerial vehicles, also known as
combat drones.
I should mention that I have been a professional military
educator for the Department of Defense, and I will be drawing
on that experience and the learning I gained in that context in
making three points for you today.
First, combat drones are battlefield weapons. Second, the
battlefield is a real place, where fighting occurs between
organized armed groups. Battlefields and armed conflicts are
not fictions created by lawyers. Third, permissible battlefield
use of combat drone is governed by law regulating who may
operate them, against whom they may be operated and how they
may be used.
Turning to my first point, combat drones are a battlefield
weapon. They launch missiles and drop bombs, a significant
kinetic force. Such weapons are permitted on the battlefield,
but we do not permit our police to have missiles or bombs in
their arsenals. They are not allowed to use that kind of
firepower in carrying out law enforcement activities.
Today in Afghanistan, our armed forces are involved in an
armed conflict. They are facing an organized enemy capable of
holding territory. In the coming battle for Kandahar, they will
be permitted to use drones. And indeed, I would suggest to you
that the use of drones in that context would be preferable to
the use of airplanes dropping bombs from high altitudes.
The drone, of course, as you learned at your last hearing,
has a video camera capability. It can send back very detailed
information, including on the location of civilians in a combat
zone and with regard to the details of civilian objects. In
that way, the pilot of the drone, or the operator from a long
distance can make much more precise targeting decisions than
can be made from an airplane.
General McChrystal has wisely called for strict avoidance
of civilian casualties in our counterinsurgency war in
Afghanistan. And I believe that drone can help us accomplish
this.
But outside of a war or an armed conflict, everyone is a
civilian when it comes to the use of lethal force. The
combatant's privilege to kill on the battlefield without being
charged with a crime applies inside an armed conflict and not
outside, which leads to my second point.
Armed conflict is a real situation that we know by the
facts of fighting. Armed conflicts exist where organized armed
fighting occurs, where there are intense hostilities. Armed
conflicts cannot be created on paper, in a legal memo, that
then translates into the right to kill as if you were on a real
battlefield. The law I am explaining is derived from the Just
War Doctrine. That doctrine has held that killing is only
justifiable in situations of necessity. Battlefields where
intense fighting is occurring is a per se situation of
necessity. Off the battlefield, we give the police the right to
use lethal force only in situations of immediate necessity to
save a life. This rule means police do not have bombs and
missiles in their arsenals, they have handguns and rifles.
Even in places like Yemen and Pakistan, where there is
armed conflict going on, the United States would only have the
right to use combat drones in the armed conflicts that those
governments are participating in, and not in some rogue
operation of our own that has nothing to do with what those
governments are trying to accomplish. We recognize neither of
those states as failed states; indeed, we are very much
dependent on both Yemen and Pakistan having strong governments,
strong identities and being stable states.
In order to build that stability in both countries, we need
to respect their sovereign rights as defined by international
law. That means that we do not have the right to use military
force except with their expressed permission and in pursuit of
their aims.
Even when we are invited to join in an armed conflict, as
we have been in Afghanistan, it is that invitation that makes
it lawful for us to participate in that armed conflict. We have
certain very strict rules in terms of how we may operate combat
drones. First and foremost, only a combatant, lawful combatant,
may carry out the use of killing with combat drones. The CIA
and civilian contractors have no right to do so. They do not
wear uniforms, and they are not in the chain of command. Most
importantly, they are not trained in the law of armed conflict.
That is why we have reason to fear that CIA-directed combat
operations are having disproportionate impacts on civilians,
and they are pursuing their use of lethal force not in a way
aimed at accomplishing the military objective, which in this
case is to stop terrorists. We know from empirical data, and
this is my final point, that the use of major military force in
counterterrorism operations has been counterproductive. A Just
War doctrine teaches that we should always and only use force
when we can accomplish more good than harm. And that is not the
case with the use of drones in places like Pakistan, Yemen and
Somalia.
Thank you.
[The prepared statement of Ms. O'Connell follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Tierney. Thank you.
Mr. Glazier.
STATEMENT OF DAVID GLAZIER
Mr. Glazier. Thank you, Mr. Chairman.
I would like to begin very quickly by thanking the chairman
and members of the committee for holding this hearing. Because
so much of the discussion after 9/11 has really been political.
And as a citizen and a law professor, I am very appreciative of
the fact that the committee really is interested in exploring
the legal issues.
I think that there is no doubt about the fact that we are
in an armed conflict. First of all, as a matter of
international law, the world community has recognized 9/11 as
an armed attack. And more importantly, as a matter of our
domestic law, Congress has chosen to exercise its
constitutional authority to authorize the use of military force
against the organizations responsible for the 9/11 attack and
any organizations that harbored them.
So it seems to me that as a matter of law, there is no
dispute that we are in an armed conflict with al Qaeda and with
the Taliban. And that therefore allows the United States to
call upon the full scope of authority which is provided by the
law of war.
Many people perceive that there is sort of a false
dichotomy between compliance with stringent rules and the law
of war and military and political success. The thing I would
like to emphasize up front is that I really feel that this is a
false dichotomy. I think we fail to recognize oftentimes how
much the law of war was developed by warriors, and how much
military necessity and the ability to accomplish what a nation
needs to do to successfully prosecute an armed conflict is
already addressed within that body of law.
I also want to suggest that the fact that many of the
instruments which comprise the law of war are dated is not
necessarily a major issue when it comes to dealing with modern
technology like drones, because much of the law of war is
expressed in the form of general rule and guiding principles,
which can readily be applied to new technical developments that
weren't anticipated at the time the war is developed. So
principles like necessity, which Professor O'Connell has
mentioned, requirements to discriminate in targeting on
proportionality, these rule are easy to apply to modern
technology, just as easy as they are to apply to the technology
that existed at the time.
There certainly is nothing with the law that prohibits the
use of drones. In fact, it is the ability of the drones to
engage in a higher level of precision and to discriminate more
carefully between military and civilian targets than has
existed in the past, actually suggests that they are preferable
to many older weapons.
Now, there certainly are issues with existing law that can
come from bad choices made in their deployment. We know, for
example, that some of the early attacks, which resulted in
larger numbers of casualties, have caused significant fallout.
But again, that is an area in which compliance with the law of
war, which requires careful discrimination between military and
civilian tactics, suggests that in fact following the rules
enhances our ability to prevail in the conflict.
There are real issues, though, I think, with who can employ
the weapons. That is something that I find very, very
problematic. The law of war has rules as far as who can be
combatants, who enjoy immunity from domestic laws for engaging
in armed conflict. So for example, I think there is little
doubt about the legality of the Air Force and National Guard
use of drones, which is an ongoing basis. But it is interesting
that the government is using CIA personnel who clearly are not
lawful combatants under the rules specified in the law of war.
Now, we law of war scholars debate what is the legal
significance of that. I think, though, that the majority view
is that if you are not a privileged combatant, you simply don't
have immunity from domestic law for participating in
hostilities. And so the reality is that it seems to me, for
example, that any CIA personnel who participate in this armed
conflict run the risk of being prosecuted under the national
laws of the place where they take place.
On the other hand, though, today our government is in the
process of trying to hold some of our adversaries criminally
accountable at Guantanamo under a legal theory that being a
non-privileged belligerent and engaging in war constitutes a
war crime. So if that is in fact our government's position,
then our sense would be that the CIA personnel participating in
this program are committing war crimes, and the individuals who
have directed them to participate are committing war crimes.
So when we asked the government to sort of address these
larger issues, it seems to me that one of the things we need to
call upon them to do is to clarify the U.S. Government's view
on this aspect. Because either we are wrong at Guantanamo or we
are seriously wrong in using the CIA to participate in the
program.
There are also issues about where the conflicts are taking
place, which Professor O'Connell addressed. I think we will
probably have some spirited discussion and disagreement on
those issues during the questions. Thank you.
[The prepared statement of Mr. Glazier follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Tierney. Thank you.
Mr. Banks.
STATEMENT OF WILLIAM C. BANKS
Mr. Banks. Thank you, Mr. Chairman, Representative Flake,
members of the committee. Thank you for the invitation to speak
with you today.
In these brief oral remarks, I am going to focus indeed on
the laws of the United States that govern the CIA's involvement
in unmanned targeting.
The decision to target specific individuals with lethal
force after September 11th was neither unprecedented nor
surprising. In appropriate circumstances, the United States has
engaged in targeted killing at least since the border war with
the Mexican bandits in 1916. In a time of war, subjecting
individual combatants to lethal force has been a permitted and
lawful instrument of waging war successfully.
But new elements of targeted killing policy emerged in
recent years in response to terrorism and to the threats
against the United States. Among the new elements, of course,
is the significant role for the CIA in controlling pilot-less
drones to carry out the targeted killing policy.
It is important to emphasize that regardless of the policy
efficacy of the drone strikes, it is never sufficient under the
rule of law that a government policy be wise. It must also be
supported by law, not just an absence of law violations, but
positive legal authority. Indeed, where the subject is
intentional, premeditated killing by the government, the need
for clearly understood legal authority is paramount. After all,
legal authority is what distinguishes murder from lawful
policy.
The National Security Act of 1947 authorized the CIA ``to
perform such other functions and duties related to intelligence
affecting the national security as the President or National
Security Council may direct.'' Although the original grant of
authority in 1947 likely did not contemplate targeted killing,
the 1947 act was designed as dynamic authority to be shaped by
practice and by necessity.
By the 1970's, fitfully, the practice came to include
targeted killing. After the Church Committee learned of and
disapproved of CIA assassination plots in the mid-1970's,
President Ford issued an executive order prohibiting CIA
involvement in assassination, notably not restricted targeted
killing, something we will discuss later. And Congress enacted
intelligence oversight legislation that, as amended, continues
to require reporting to Congress by the President of
significant anticipated intelligence operations.
In the weeks after 9/11, President Bush signed an
intelligence finding giving the CIA broad authority to pursue
terrorism around the world. By statute, the finding must
accompany any covert operation approved by the President,
including those that permit targeted killing. In this
particular classified finding, the President reportedly
delegated targeting and operational authority to senior
civilian and military officials. The 2001 finding was
apparently modified in 2006 by President Bush to broaden the
class of potential targets beyond Osama bin Laden and his close
circle and also to extend the boundaries of that authorization
beyond Afghanistan.
In explicitly permitting the targeting of an individual
with lethal force, the finding also more narrowly focuses the
potential to inflict violence. Ever since the Hughes Ryan
Amendment of 1974 Congress has authorized CIA covert operations
if findings are prepared, delivered to select Members of
Congress before the operation that is described, or in a timely
fashion thereafter.
So long as the intelligence committees are kept fully and
currently informed, the intelligence laws permit the President
broad discretion to utilize the Nation's intelligence agencies
to carry out national security operations, implicitly including
targeted killing. Such an operation would follow intelligence
law as ``an operation in foreign countries other than
activities solely intended for obtaining necessary intelligence
unless it would be conducted pursuant to statutory authority.''
To some, it seemed that the 2001 finding ran counter to the
longstanding ban on political assassination. Enshrined in that
executive order first issued by President Ford in 1976, the
directive forbids political assassination but does not define
the term. Just what does distinguish lawful targeted killing
from unlawful political assassination?
The answer turns upon which legal framework applies, as we
will discuss further here this morning. During war, whether
authorized by Congress or fought defensively by the President
on the basis of his authority, targeted killing of individuals
combatants is lawful, although killing by treacherous means
through the use of deceit or trickery is not. In peace time,
any extra-judicial killing by a government agent is lawful only
if taken in self-defense or in defense of others.
But what rules apply when the United States is engaged in
an non-traditional war on terrorism or a war against al Qaeda?
The evolving customary law of anticipatory self-defense and
intelligence legislation regulating the activities of the CIA
supply adequate, albeit not well articulated or understood
legal authority for these drone strikes.
Thank you very much.
[The prepared statement of Mr. Banks follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Tierney. Thank you all.
It certainly gives us some food for thought. I am going to
begin the questions and we will go around. I suspect more than
one round here.
So, if I am listening to all of you, you all sort of agree
that the who and the where are the principal issues here, who
is using the drones and where that use is. I will watch your
heads bob or go back and forth, or whatever, and stop if
somebody disagrees with that.
So if it is on the battlefield, and the military is doing
it, fine. Nobody has a problem with that. If it is on the
battlefield and the CIA or some other civilian organization is
doing it, some people have a question, or not? Some people do
have a question. Ms. O'Connell.
So even if we are on the battlefield, we are in
Afghanistan, for instance, engaged with who the military may
think is al Qaeda or the people that they are in contest with,
but they have the CIA doing the targeting of drones, or
whatever, what is the issue there?
Ms. O'Connell. No, under international law of armed
conflict, the CIA does not have the right to carry out
battlefield killings. Professor Glazier and Professor Anderson
both agreed with me on that, that the international law
regulating the battlefield does not give the combatants
privilege to kill without warning and not face prosecution to
persons who are not members of the regular armed forces of a
country, who are not under military discipline in a chain of
command and not trained in the law of armed conflict.
And those important characteristics, which as Professor
Glazier said, we are holding people at Guantanamo because they
didn't meet those characteristics, those are failures, those
are deficits on the part of the CIA. They simply have no right.
We are already facing, 17 of our CIA agents are under
indictment in Italy for attempting to kidnap someone off the
streets of Milan, an alleged person with ties to al Qaeda. If
that is what the rest of the world thinks is the right result
with regard to kidnapping, you can imagine how the rest of the
world views killing persons by the CIA. It is just a clear
violation of international law.
Mr. Tierney. Mr. Anderson, you wanted to explore that?
Mr. Anderson. I would disagree in part with that. But I
guess in terms of the framing issue that you raise, there are
two issues implied. One is, what is the ability, if any, of the
CIA lawfully to participate in something that is an armed
conflict when they are civilians. It is more complicated, I
think, than Professor O'Connell suggests, in the sense that
their participation may or may not involve the combatant's
privilege, but does not make it per se unlawful under
international law necessarily. That is, there are questions
about whether they are taking direct participation in
hostilities. There are questions about their status as
civilians in the conflict zone.
But then beyond that, there is a question as to where does
this armed conflict run? Does it run outside Afghanistan? Does
it run into----
Mr. Tierney. That was going to be the next extension of
this on that.
Mr. Anderson. But that will be the question for the CIA.
Then there are two different questions if one accepts that
these are two different situations geographically.
Mr. Tierney. Let me take this a little bit further. Suppose
now we are talking about the situation in Yemen with Anwar al-
Awlaki. So I guess you would have to accept the fact or make
the argument that he is associated with al Qaeda, or somehow an
al Qaeda person, or you have a problem right off the get-go, if
he is not associated with somebody that you can make an
argument that you are in a conflict with, you have an issue. Is
it OK for our military at that point in time, as this is an
extension of our conflict, to use a drone and target this
individual? Is that acceptable under international law?
Ms. O'Connell. No. That was a point of my remarks as well.
Mr. Tierney. The battlefield issue?
Ms. O'Connell. Yes. In Yemen, this particular case again,
in 2002, when we carried out our first drone strike in Yemen
and killed named individuals, the Air Force refused to carry
out that operation. They were the ones operating drones at that
time. And the CIA was willing to do it. The Air Force said, we
don't have any right to kill in a situation in which we are not
involved in a battle, in an armed conflict. And the Air Force
was right, that was the correct legal intelligence.
Professor Glazier said that he agreed with this lawyer-
created concept that we are in a worldwide self-defensive armed
conflict against al Qaeda and the Taliban and others. And he
said that this is supported by the world. In fact, after
September 11th, the United Nations Security Council did find
that the attacks gave rise to the right of the United States to
engage in self-defense. But we engaged in the self-defense that
the law of state responsibility gave us a right to engage in,
and that was in Afghanistan. That was the state responsible for
carrying out the attacks, for supporting al Qaeda in being able
to carry out those attacks.
So we lawfully took the battle to Afghanistan. We engaged
in lawful self-defense on the territory of the state where we
had been attacked. But the rest of the world does not recognize
the right to carry out attacks of a battlefield all over the
world, such as in Yemen and in parts of Pakistan and in other
places. There are many other countries that have been attacked
by al Qaeda: Great Britain, Indonesia, Spain, Kenya. None of
them consider themselves to be in an armed conflict all over
the world against al Qaeda. They consider themselves to be
involved in counterterrorism operations. And using the methods
that they have used, they have been very successful.
The British have said, you are never in an armed conflict
with terrorists. They are minor criminals, you do not elevate
them to combatants. And President Ronald Reagan said the same.
I agree with President Reagan, you cannot have an armed
conflict with terrorists. They are mere combatants, they are
not warriors and they should never be elevated to the level of
warriors. Our warriors are in an armed conflict in Afghanistan.
We should be using counterterrorism law enforcement techniques
in other countries. We just don't have the right to bomb people
where there is no armed conflict.
Mr. Tierney. This is where the 5-minute rule is
particularly limiting.
Ms. O'Connell. I am sorry.
Mr. Tierney. No, it is for me, not for you.
Mr. Flake.
Mr. Flake. Let me expand on that a bit. When we talk about
Yemen, how many attacks, Ms. O'Connell, do we know of that have
been public, have we used in Yemen, as far as drone attacks?
Ms. O'Connell. I know of only three or four, one carried
out in the Bush administration and the others in the Obama
administration. The Obama administration has clearly stepped up
the policy of using drones in non-armed conflict situations.
Mr. Flake. You were drawing some kind of distinction
earlier with regard to whether or not we have permission from
those states. But it seems from what you are saying, that
shouldn't even make a difference.
Ms. O'Connell. There is a very key and often overlooked
distinction. The invitation has to be to participate in the
armed conflict that the government of the country is
participating in. So Yemen right now is facing insurgencies in
the north and the south. It has two rather minor insurgencies
going on right now. They are getting some help from Saudi
Arabia, they have requested that help with regard to one of
these insurgencies. If they had asked us, the United States, to
be also involved, we could use military force there, on their
invitation, in their armed conflict.
But what we have done, and in 2002, the case we know the
most about, this attack was not part of any armed conflict that
the Yemeni authorities were involved in. It was six individuals
in a vehicle in a remote area, and we killed all six persons,
including a U.S. citizen. That is not an armed conflict that
Yemen is engaged in. So even having consent in that case is not
sufficient.
Mr. Flake. Mr. Banks, you mentioned the requirement that
Congress be informed under the National Security Act. Is there
any evidence that Congress has not been informed sufficiently
with regard to these activities?
Mr. Banks. Not to my knowledge, Representative Flake. It is
of course a very broad grant of authority. And the reporting
requirement is only ambiguously stated, but fully and currently
informed. So that language would suggest that Congress, the
intelligence committees, should know the details about those
operations.
Mr. Flake. I take it you disagree, then, with the position
that we can't or shouldn't be involved in targeted attacks in
Pakistan or Yemen?
Mr. Banks. Whether we should as a matter of policy is not
my expertise. I think that the law may permit that. I don't
think that the paradigm of armed conflict is the only body of
law that may apply in that setting. I think the law of self-
defense, part of customary international law, as well as the
laws of the United States, constitutional powers of the
President, the authorities that you, the Congress, have given
to the President through the authorization for the use of
military force, along with the intelligence laws that I made
reference to in my remarks, I think all have a role to play in
deciding what authority the United States has to operate in
those non-traditional battlefield environments.
Mr. Flake. In that kind of environment, would it make a
difference at all to make it legal, if you will, that the
country give some kind of blanket or other kind of approval, as
Yemen seems to have done, or Pakistan has certainly done?
Mr. Banks. I think this host state consent is a very
important ingredient, as Professor O'Connell suggested. But it
is not necessary. I think Mr. Koh made that observation even in
his March 25th address in articulating the posture of the
administration on these matters.
Mr. Flake. Mr. Glazier.
Mr. Glazier. I do disagree with Professor O'Connell on one
issue, and that is this sort of narrow definition of
battlefield. It seems to me that battlefield is a descriptive
term and not a legal term. And that in an armed conflict, those
members of the enemy's forces who are legitimately targetable
are essentially legitimately targetable anywhere.
Now, traditionally, armed conflict takes place in the
country of the state parties and in international airspace and
waters. So there are issues basically from the law of
neutrality that talk about when you can exercise an armed
conflict in another country. And it is certainly discouraged.
But if a neutral either were to give its consent or more
importantly, if a neutral was not exercising its obligations to
prevent its territory from being used to the detriment of a
warring party, then in fact, as the United States went into
Cambodia out of necessity during the Vietnam War, it is lawful
for a country to conduct some limited operations under a high
degree of necessity in countries which are not direct parties
to the conflict.
Mr. Flake. Let's bring it to present day, real terms, the
underwear bomber, we know now was trained in Yemen. If we had
actual intelligence that he was being trained to do what he
eventually did, and that he was in Yemen in one of these camps,
the Yemeni authorities have given us blanket approval to go
after, but it wasn't part of an armed conflict that the Yemeni
government was involved in, Ms. O'Connell, are you still saying
that would not be a justified action?
Ms. O'Connell. That is quite correct. Let me just say in
response to Professor Glazier, international law clearly has a
definition of what an armed conflict is and what a battlefield
is. I chair the International Law Association's Use of Force
Committee. We have issued a report in 2008 that shows, without
doubt, what international law supports as the definition of
armed conflict. And it is not in a place where there is no
intense organized armed fighting. And you do not have the right
to use military tactics in those places.
You have the right to use police enforcement measures. And
that is what the United Nations said when they reviewed our
Yemen strike in 2002. They said that was an extra-judicial
killing. They did not say what Professor Glazier said, that
because these were al Qaeda persons, they were related somehow
to the armed conflict in Afghanistan and they could be killed.
That is not what the U.N. said. The experts on this particular
law said it was extra-judicial killing. And nothing has changed
in the case that you bring up of the more recent so-called
underwear bomber.
But let me just say, because there is some kind of view, I
think, that we have come to have in the United States that this
is somehow restrictive law, unreasonable law, that we should be
able to go out and kill these people wherever we find them,
that this is somehow making our country less safe. Quite the
contrary.
I cite the Just War doctrine, because this is an ancient
set of rules that really are consistent with our principles,
and our sense of what works, how we can really repress
violence, how we can really build the rule of law. And it is
not by finding loopholes, interpreting broadly and loosely and
using more force than is really necessary in these situations.
Law enforcement works against terrorism, and that is what we
should be doing.
But more importantly, when we don't follow the rule of law,
and everyone knows that when these drone attacks occur in
places like Yemen or rural Pakistan, everyone in the world is
watching us. And they know there is something wrong with this.
We are not holding ourselves up to the beacons of the rule of
law. We are not sending a signal that we want to see all
countries suppressing violence and promoting the rule of law.
This is a very dangerous policy, because it is not
consistent with the law.
Mr. Tierney. Thank you.
Mr. Foster.
Mr. Foster. Thank you, Mr. Chairman.
Do any of you know how much training the drone operators
receive in international law and these sorts of issues?
Ms. O'Connell. I quote Bill Banks as saying ``none.''
Mr. Banks. I think Professor O'Connell is referring to a
conversation we had about the known training of CIA personnel
in that regard. That is true, although I have read recently
that there may be some. But I have no inside information.
Of course, for members of the military, perhaps Professor
Glazier should comment on law of war training.
Mr. Glazier. Well, I can't speak at all to what the CIA
folks are getting. But I also note that, it sounds sort of an
odd thing to say, perhaps, but the reality is that the U.S.
military has always sort of emphasized law of war compliance
among the practitioners, sort of in the form of giving them
clear rules to follow. So the reality is that there are many
situations which American service personnel may not even know
that they have had law of war training, because they are given
sort of specific rules to follow in carrying out armed
conflict, often in the form of pocket cards, which reflect a
combination of rules from the law of war, as well as policy
judgments that the U.S. military hierarchy and civilian
leadership has made in terms of how they want a particular
conflict covered.
So it is not necessary to be able to poll an individual
service person and say, have you had training in the law of war
for there to in fact be law of war compliance. But I don't know
what the CIA does.
Mr. Foster. Mr. Anderson.
Mr. Anderson. I think this is something of a----
[Remarks off mic.]
Ms. O'Connell. I just disagree a little bit with that. Mr.
Foster, I think your question is very well put, because the
interviews I have done with drone operators, they have the
final say about whether they press the button. So even if it
has been cleared by Chairman Panetta, and to my knowledge, I
don't believe he has been trained in the law of armed conflict.
But anyway, the drone operators are the ones who finally
have the responsibility of pushing the button. So their
training is highly relevant. If they are going after a named
individual, and he is in a house with a number of other persons
we have no information about, so that we have to err on the
side that they are civilians, our fighting men and women know
the rules of proportionality. And they are not going to make
that strike.
For the CIA person, that name on the list is his sign that
he has accomplished what he has set out to do. And that is a
very different calculation for the strike.
Mr. Foster. My next question has to do with probably my
ignorance of the exact definition of the battlefield. If we
just look at the supply chain, if you consider for example, an
IED used in Pakistan that is manufactured in Iran, say, and
that may go through staging areas in Pakistan and be shipped by
means that we can identify along the way, how far back in the
supply chain can you go before you leave the battlefield?
Mr. Tierney. Can I just interject? My apologies, Mr.
Foster. We are having some difficulty with the microphones. If
I could ask each of the witnesses to pull them closer to them
and make sure they are on when they speak, it will help with
the recording of the hearing. Thank you.
Mr. Foster. Mr. Glazier.
Mr. Glazier. Again, I respectfully disagree with Professor
O'Connell that the law of war provides a definition of the term
``battlefield.'' The law of war provides a definition of
military object. And military object is something that by its
purpose or use creates a military advantage. An IED therefore
is clearly a military object.
The issue then about how far back in the logistics chain
that we can attack it I think then becomes a matter governed by
sort of broader rules of law. Because we are not in an armed
conflict with Iran, and there is nothing that makes it a crime
for a nation to engage in the production of war materials and
sell them to other countries. In fact, even during World War
II, Switzerland provided war materials to other countries. And
that was not a violation of any law. Switzerland was a neutral
power and was not a legitimate object of attack.
So where the IED becomes a legitimate or lawful object of
attack becomes where it either comes into the hands of
terrorists in a country or location where it's legal to attack
them or arguably where it comes into their possession in a
neutral country and that neutral country is allowing its
territory to be used by that group to the detriment of the
country that is at war. So if we are in a war with al Qaeda, if
when al Qaeda comes into possession of a weapon and if it is in
a country which is not taking steps to prevent them from using
their territory to our detriment, that, I think, is where we
draw the line and where an attack becomes lawful.
Ms. O'Connell. I have a different view of the matter.
First, I think it is important that the law, the current law is
what we have in our minds. So 1949 is the Geneva Conventions,
1945 is the United Nations Charter. These are the dates that we
should be working from.
There has been a lot of confusion about the right to use
drones in Pakistan because of events in Pakistan having an
impact on our battles in Afghanistan. I think this is where
some people who even understand that there is no such thing as
a worldwide war against terrorists do have some confusion about
why we aren't in a war in Pakistan as well as Afghanistan.
But that sovereign boundary between Pakistan and
Afghanistan is highly significant. It is highly significant for
our efforts to help support a stable and effective Pakistan,
which is ultimately going to be our protection from terrorism
and lawlessness in Pakistan. Respecting that border is
essential.
Yes, there is some cross-border activity. There are people
hiding. There are some munitions going across the border. But a
series of cases from the International Court of Justice makes
it clear in that situation, Afghanistan, with our help, has to
protect against that kind of low level activity at the border.
It can't make strikes into Pakistan against those kinds of
activities. That is clearly unlawful.
And I would just use an analogy. Think about the way the
United States would feel. We have a lot of lawlessness on our
border with Mexico. Mexico is justifiably unhappy that we are
not able to restrain narcoterrorists from getting across the
border, bringing weapons in, bringing persons back and forth.
And they have made complaints to us and they have told us to
stop these criminals from getting across the border. Should we
allow their police or their military to use combat drones to
strike at hotels or places in Arizona where the Mexican
military thinks that some of these people are hiding?
Absolutely not.
If Mexico asks us, and of course, we are making an effort,
as Pakistan is, and we will help Mexico even more. But we
expect Mexico to do the main job of defense at their border.
And that is what we have to expect Afghanistan to do, too.
Mr. Glazier. One thing I omitted from my statement is that
there is, though, an imminence requirement for a strike in a
neutral territory. So in other words, when I said that we could
potentially strike at an IED in the possession of al Qaeda in a
neutral territory, there does also though have to be an
imminent nature to the threat. So if it was simply in a
warehouse or being stockpiled or wasn't going to be used
against us in the near term, then we don't have a right to
strike a neutral territory.
But I do think that the right is perhaps a little bit more
extensive than Professor O'Connell presents it.
Mr. Tierney. Thank you.
Mr. Duncan, you are recognized for 5 minutes, or
thereabouts.
Mr. Duncan. Thank you, Mr. Chairman. I don't think I need 5
minutes. But I do have some concerns about this. I certainly
have no sympathy for any terrorists or anybody who is
attempting to kill Americans.
But I do have some concerns when I read, as I do in the
committee briefing, that the number of drones has been
increased in the Defense Department from 167 in 2002 to over
6,000 today. I guess it says in 2008, maybe there is more than
6,000 now. Unfortunately, I couldn't come and hear your
testimony.
But a few months ago, I read an interview in the Washington
Times which said that, where the top United Nations anti-
terrorism official said that al Qaeda now had so few members
that it was ``having trouble maintaining credibility.'' Those
were his words. I remember reading an earlier column by the
conservative columnist Walter Williams who said that the
threats from al Qaeda have been so exaggerated that al Qaeda
had, I think fewer than 3,000 members at that time, and this
was 2 or 3 years ago, I guess, and had no money and was made up
mainly of high school dropouts who were living at home with
their parents.
I saw another report after that said it had fewer than
1,700 members, and of course, all that was well before this
interview by this United Nations official.
What I am concerned about, I have long thought, I mean, we
have been in Afghanistan for 9 years, and in Iraq. I have long
thought that the threat that is there has been greatly
exaggerated. I am afraid that much of this is being done
because of money and power. When I see us increasing the number
of these drones to many thousands, I am very concerned that we
are going to start seeing more incidents of innocent civilians
being killed, or mistakes being made.
That is the concern that I have, more than anything else. I
just thought I would add that to the hearing here this morning.
Thank you, Mr. Chairman.
Mr. Tierney. Thank you, Mr. Duncan.
Mr. Welch, you are recognized for 5 minutes.
Mr. Welch. Thank you. My first observation is, every time I
listen to Mr. Duncan, he makes more and more sense. Thank you.
Thank you very much for being here. Just a few questions.
In the last month, there have been several news reports, of
course, you had referred to this, I think, that an American
citizen has been added to the target list. Just go down the
line quickly, if you can, I don't have much time, but can the
United States in your opinion legally target an American
citizen?
Mr. Anderson. Yes. As they have done, and the information
has been released on the basis that we know publicly, at least,
the basis on which he is targeted. And the emphasis on the
statements by the administration that this had gone from simply
making statements about various things to active assistance in
planning and operations.
Ms. O'Connell. An American citizen who takes up weapons
against his country and fights our combatants on the
battlefield, of course, may be killed in the course of that
armed conflict. Otherwise that American citizen, as any person
in the world, should be detained through law enforcement
measures. If that person resists arrests, of course a very
dangerous person may be killed in the course of resisting
arrest. The fleeing felon rule. Otherwise, we all have human
rights, Mr. Welch.
Mr. Welch. Thank you.
Mr. Glazier. I will limit my answer to a strict law of war
perspective. If the individual is affiliated with a legitimate
adversary, and has essentially the status of a combatant or an
individual in the chain of command of the combatant, then I
believe they are a lawful target. In fact, under domestic law,
I mean, the Supreme Court held in Ex parte Quirin that it
didn't matter whether a combatant might have a claim to U.S.
citizenship. It was the fact of affiliation with the adversary
that made them liable to targeting.
Mr. Banks. I believe the answer is yes as well, and I would
remind us that part of the authority here includes domestic law
as well. The President's constitutional authorities and the law
that you enacted in 2001, the authorization for use of military
force, may permit targeting that individual.
Mr. Welch. OK, thank you.
I want to ask you about this. Last year, the International
Committee of the Red Cross put out interpretive guidance, as
you know, to help define what can be considered ``direct
participation in hostilities.'' And again, I would like to just
go down the line, I am sure you are all familiar with that. Do
you agree with the ICRC's interpretation of the relevant law?
If you don't, what would you change?
Mr. Anderson. Most of what is in the interpretive guidance
is fine. But there are a number of provisions in there that I
think are completely over the edge, in fact, and I am very
surprised that the ICRC would put them out, given the fact that
they could not command a majority of their own experts in that
regard. Those primarily go to the question of part-time
combatancy or civilians who take some part in hostilities, and
the question of where you draw those lines. But I think that
the way the ICRC has drawn them is really quite unacceptable.
Mr. Welch. Thank you.
Ms. O'Connell. I have spent a very good deal of time
studying the interpretive guidance. In fact, I believe
Professor Anderson is not quite right, there were a few of the
experts who have a dissenting opinion, but not a majority. The
few who had a dissenting opinion were from countries where they
wanted to have an expansive right to use military force and
some of their allies.
And the unhappiness in the final product was that the ICRC,
I think, did in fact take a step away from the strict
definition of who is a direct participant in hostilities to
appease these experts. But at the same time, it said, if we are
going to do that, we have to add some other protections back
in. So it actually raised the requirement of necessity for any
killing.
I think on balance, taken together, those two elements, a
looser definition of who is a potential target, but a higher
and more restrictive right of when you may actually kill, is a
balanced outcome in the end. If you are going to change the
law, I think that is the only way you could do it. I think by
now, because the ICRC is so influential, this is now becoming
the standard.
I think in the end, we are going to be happy with it. But
it has certainly been a difficult development process.
Mr. Welch. Thank you.
Mr. Glazier. Just two quick comments. The first is that the
higher standard may very well be a good idea. But I don't think
it is reflective of the state of which nation states, nation
states ultimately make the international law. I certainly think
aspirationally it is probably good. But I think it exceeds the
current state of the law.
The other thing I would just point out, as I am sure you
are aware, but for the record, is that the ICRC guidance only
really comes into play if we are categorizing the adversary as
civilians. Because it relates to the direct preservation of
civilians. If an individual is in fact a warrior, or is treated
as a combatant, then under the current law of war, that status
makes them targetable at all times and essentially all places.
So it is only if we are choosing to deny the adversary
combatant status, which I think is a political choice that we
have, we can then invoke a whole different set of rules.
Mr. Banks. I would also make two comments. I think there
are problems with the part-time warriors. I think the ICRC
interpretation doesn't reflect the nuance that needs to be
taken into account to get at insurgents and terrorists who go
home at the end of the day. As Professor Glazier would say, an
armed member of our armed forces of course enjoys no such
privilege to go home and watch television at the end of the
day. He is a target 24/7.
The second comment of course is that this, as I have said
before today, this paradigm of the laws of armed conflict is
only one of the spheres of authority that must be taken into
account in deciding who may be reached as a target.
Mr. Welch. Thank you. I yield back.
Ms. O'Connell. Could I just add briefly that in fact the
interpretive guidance understands the point Professor Glazier
was making, that it would be unfair to regular combatants if
they were held to, if they didn't have the same necessity
protection that direct participants have, non-traditional or
unlawful combatants. So they have actually added the necessity
requirement even to regular combatants. And I think it is only
fair that our serving men and women in uniform get as much
protection as somebody who is an unlawful combatant, or a
direct participant in hostilities without the right to do so.
So I think that probably in the end, we would all agree, is
a good thing. I think it also goes to the point that I have
been trying to make, that the world does not accept that
everywhere you go is a battlefield because of the person who is
there. Internationally, we are coming to this understanding
that killing really should be in situations of necessity. That
is not all these places everywhere in the world. It is
certainly not here in the United States, Germany, England, etc.
Mr. Welch. Thank you, Mr. Chairman.
Mr. Tierney. Thank you for your questions on that.
Mr. Quigley.
Mr. Quigley. Thank you, Mr. Chairman.
To the panel, Mr. Bynam from Georgetown University, talking
about the need for greater oversight, said, ``You need someone
to effectively act as a devil's advocate within the system who
is ideally outside the decision loop of such programs. It could
be a U.S. attorney or something like the Foreign Intelligence
and Surveillance Act court that makes judgments on secret
wiretaps, because the simple requirement of going before a
judge or an independent official to make a case for a targeted
killing introduces a measure of accountability.''
So what I would ask the panel is, do you agree with Mr.
Bynam, should there be some sort of an independent third party
to oversee and approve drone activities?
Mr. Anderson. I would disagree strenuously with the
proposition that this is an area that should be judicialized. I
think that it is not the proper frame for the U.S. judiciary,
and I don't think that they would have any expertise, and
inevitably would wind up turning it into something that would
both make the intelligence and military uses of force less
effective. At the same time, I believe it would also corrupt
the domestic judicial process in the United States, because
they would be involved in a series of activities with
necessarily very murky lines to be drawn. I don't think that it
is an appropriate role for the judiciary to be involved in.
I do think that there is a much greater role to be had for
accountability and oversight coming from the Congress itself.
Precisely as the prospect of drones raises the possibility of
smaller and more discrete uses of force, in which case that can
in some sense substitute for war. In that regard, I think that
the right accountability mechanism actually rests with the
Congress and not with any other body.
Mr. Quigley. But who is the person that does that on the
battlefield?
Mr. Anderson. I think the questions about the use of force
that are most crucial here are ones that are actually being
made by the CIA, and that requires the processes that Professor
Banks had referred to, I think they actually need to be
strengthened to require more consultation with Congress and
more information to be given to Congress. I think that one of
the important roles that Congress has in this is to be able to
raise objections to particular things.
I think it is a much more complicated role for Congress,
but I believe that it is actually the right mechanism to
provide accountability.
Ms. O'Connell. I agree with Professor Anderson. Having a
court involved would not help us get into compliance with the
law of armed conflict. There is an assumption in the idea that
somehow what the CIA is doing just needs some oversight. In
fact, there is no justifying it, so how could a court help?
I agree with Professor Anderson that it is up to Congress
to make sure that the executive branch remains in compliance
with our fundamental obligations internationally to the extent
that the executive is not doing it itself.
Mr. Glazier. I would just say that if the attacks are being
conducted under the law of war, under military authority, then
these issues are essentially addressed through the rules of
engagement as far as deciding what level of oversight is
necessary within the military chain of command. If this is
activity that we are deciding is taking place deliberately
outside of the law of war setting, and we are using basically
national security laws and international rights or asserted
rights to self-defense, then that does seem to me that is a
matter for Congress to decide how they want to structure the
law governing those matters.
Mr. Banks. I agree that the courts should not be involved.
I also share the view that Congress could do more than it has
customarily. We have talked today about battlefield. It may be
that in terms of oversight, one thing that Congress could
consider is establishing criteria for the use of targeting
outside of traditional battlefields.
In other words, you need something to oversee. You need
more than what the law now says to be currently and fully
informed. Your Bynam quote suggests that there should be some
measure that could judge whether or not the efficacious
behavior of our government has followed its policies. Could
there be criteria for the use of force outside the traditional
battlefield? Could those be statutorily conferred? Could they
be then subject to oversight of the type that we have been
discussing here?
Mr. Quigley. And what would the precedent for that be?
Mr. Banks. The precedent might be, as Bynam suggested in
his comment, use of an intelligence court to review the
surveillance requests of the Department of Justice, even though
that is a judicial forum. I think that for all the reasons that
have been offered here today, the courts are ill-equipped to be
involved in that process. They wouldn't want to do it. The FISA
court, I think, has a very full plate. And you are much more
equipped, I think, to make those kinds of judgments in your
role.
Mr. Quigley. Thank you, Mr. Chairman.
Mr. Tierney. Thank you.
I am going to make some statements and ask you to react if
you disagree with them and move along with that. If we have a
situation where we have a battlefield like Afghanistan, the
military is using drones, I don't think I have heard any of you
disagree with that. I think all of you think there is question
whether the CIA or other civilian organizations can do that
with authority.
If we take one of the people involved in that conflict,
some al Qaeda operative, and say he moves back over the border
into Pakistan. Some of you think that it is fine for the
military to go after him there, but some of you think that,
again, there is a question and a problem with the civilians or
the CIA doing it.
Is there a problem if you think that the Pakistanis have
agreed to have the United States exercise this type of force?
Am I right there? So if this al Qaeda person goes over the
border in Pakistan, we are fighting that fight too, and you can
use your drones to get them, and nobody on the panel seems to
have difficulty there?
If that individual keeps traveling and goes to Yemen, I
sense that some of you don't have a problem with the military
going after him there. OK. So there is one individual going
into Yemen, being targeted, and nobody has a problem with that,
the military going after them, even though they may not be
involved at that particular time in anything eminent. OK, I am
going to keep moving this unless somebody jumps in on me here.
Ms. O'Connell. Mr. Chairman, when you said there is only
one person, it makes it sounds as though it is a majority vote
and we are the Supreme Court and we get to decide whether
killing that person in Yemen is lawful or not. I am really
trying to be objective, this is not my personal opinion.
Mr. Tierney. No, no, it is the law. I want you to interpret
the law for me.
Ms. O'Connell. This is what international law says. And the
authorities that I am speaking of are the United Nations----
Mr. Tierney. I think we all understand that. Nobody is
going to pin this on you. We are asking you as professors and
legal scholars what the law of the land is out there.
Ms. O'Connell. I want to stand here with many, many others
who agree with me, even though the three who have been called
today don't share that view.
Mr. Glazier. I would like to speak for myself, rather than
have someone else decide what my views are on this.
Mr. Tierney. Now is your chance.
Mr. Glazier. Exactly, sir. The international law that
governs the use of force preemptively in other countries was
basically crafted by the United States in discussion with the
United Kingdom after the Caroline incident of 1837. It does, I
may have sort of seemed a little bellicose in some of my
earlier remarks, but it does in fact impose constraints of
necessity and imminence. So I do think that this one individual
as you have described, while they have moved across the border
in Pakistan, they may still reflect that imminent threat.
But unless we actually had intelligence that said, ``not
only are they in Yemen, but they are on the verge of doing
imminent harm to the United States from that position in
Yemen,'' then in fact under the rules that the United States
has taken the lead in crafting, that is too far removed, and we
would no longer have the authority even for the military to use
force at that point.
Mr. Anderson. I will round it out, I guess. I think one of
the things we have to keep very much in mind here is that the
United States has long had a policy, and has declared its legal
view and it is reiterated in Harold Koh's statement as the
considered view that where a country is unable or unwilling to
prevent its territory from being used as safe haven for
transnational terrorists, and this goes back decades and
decades and decades, the U.S. view is that yes, there are
imminence requirements and yes, there are Caroline
requirements, and yes, there are numbers of other
considerations.
But important as sovereignty and territorial integrity are,
the United States regards it as lawful to be able to go and
strike those persons where a country is unwilling or unable to
control its territory.
Mr. Tierney. So an individual like al-Awlaki, if somebody
were to go after him, are they using the combatant theory or
the self-defense theory?
Mr. Anderson. I believe that the administration is using
the self-defense theory at this point, because of where he is
located and because I am not--actually, I can't tell you that.
I wish I knew and I think it would be something where Congress
should actually ask questions of the administration to find
that out. I don't know.
Mr. Tierney. My concern there is if al-Awlaki goes back to
Texas, is it then lawful to blow him up there?
Mr. Anderson. No. The territorial United States is a very,
very different proposition from Yemen or any other place.
Mr. Banks. For the practical reason that an arrest may be
effected there in Texas.
Mr. Tierney. That presumes then an arrest couldn't be
effected in some other country where he is.
Mr. Banks. It does. If that alternative is available, we
should pursue it.
Mr. Tierney. Is that generally agreed to by you, Mr.
Anderson, as well?
Mr. Anderson. No, not entirely. I believe that as Harold
Koh stated in his testimony, there is not an obligation to give
process and there is not an obligation to give warning, once
one has identified that person as being either a target in
relation to an armed conflict or self-defense.
Mr. Tierney. And there is no obligation to arrest him, if
that is possible, even if you could?
Mr. Anderson. There is no obligation to arrest him. Now,
there is an obligation to identify him as a target and to show
that there is some necessity about that. And the question of
how much necessity may involve and probably should involve a
question of, is this London and could we go to the authorities
there in order to do that.
But the reality is that Yemen and Britain are really
different.
Mr. Tierney. Where does this, the imminence of the threat
come in on this? I know Mr. Koh spoke about that. A definition
of that would be helpful.
Mr. Anderson. He raises that as one of the considerations
that has to be taken into account as part of self-defense. So
he is referring to what has been referred to as the Caroline
doctrine.
But the United States has embraced for a very long time the
idea that self-defense includes an ``act of self-defense''
where one is looking to the character of the threat and things
they have done in the past and things that the group with which
an individual is affiliated has done in the past, in order to
decide that they constitute a threat. It is not some idea in
the United States' mind, certainly, that it is looking and
saying, ``oh, they are about to cross the border with a nuclear
weapon.'' It is not that kind of eminence.
Ms. O'Connell. I don't know what policy we have had for a
very long time on this. The targeted killing of individuals has
really begun after 9/11. We didn't take this view that we could
go around with drones killing people of this kind. I think the
comment that there is somehow a distinction between what we can
do in the United States and the U.K. versus Yemen is really the
telling point. If there is a worldwide armed conflict that we
are justified in fighting out of self-defense and treating all
the persons involved in al Qaeda as combatants we can kill
without warning, then why isn't there an armed conflict in the
United States where we can do the same thing? Or the United
Kingdom or Germany?
In fact, the Bush administration took the view that we
could do this. There were statements made to the Congress that
we could. And that just shows that this is a fiction we are
dealing with, created by lawyers. And it is not the reality and
not what the law requires. There is no armed conflict happening
in this country. Our official view of Yemen and Pakistan is
that in those countries, we should be working with their
authorities. We should not be dismissing them as unable or
unwilling. And the more we do that, the more we undermine the
respect their people have for them and their ability to do this
job for us.
So it is counterproductive, it is non-factual, it is not
our official position that either Pakistan or Yemen are unable
or unwilling. Therefore we should not be treating them as
combat zones.
Mr. Tierney. Does your opinion change if Yemen or Pakistan
said to the United States, we would like you to get that guy?
Ms. O'Connell. No, because Pakistan and Yemen can only give
us the authority that they have to give. If they are involved
in an armed conflict, and Pakistan is now trying to clear the
Swat Valley of certain Taliban forces, if they ask us to join
with them in carrying out that particular action, and really,
there is question under law of armed conflict whether named
individuals can be targeted and brought to bear. Mr. Koh only
mentioned one case of this, which was a World War II case
involving Justice Stevens. And he regretted killing a named
person. So this is really a question for warriors in an armed
conflict.
The only thing that Pakistan or Yemen can ask us to do in
terms of carrying out battlefield killing is to join with them
in their own armed conflicts to try to support what they are
doing.
Mr. Tierney. So if Yemen decided that this was a guy they
wanted to have a conflict with, that he was part of some
operation that they thought, or whatever, then they could do
it?
Ms. O'Connell. Yes. And we can certainly help them, and we
were helping them after the Cole attack. Our FBI people, with
really good training in Arabic, who know terrorism networks,
were working effectively with the Yemeni authorities. That is
the route we should be pursuing and should have been pursuing
in these last years.
Mr. Tierney. Thank you.
Mr. Flake.
Mr. Flake. Mr. Anderson, Legal Adviser Koh, his statement
didn't specifically mention the CIA. Is there a reason for
that? By saying there is authority, did that necessarily
capture uniform or civilian operators? What is your feeling
there? And should he have, and will they need to further
clarify?
Mr. Anderson. I think that part of the difficulty is that
although Director Panetta is all over the newspapers,
deliberately in order to give information about the campaign
that is taking place in Pakistan and elsewhere, it has never
actually been officially admitted. And so I think that the
difficulty for the State Department is how do you wind up
providing official overt legal blessing to something that the
agency itself doesn't formally admit actually takes place.
I believe that this has actually reached a
counterproductive point for the CIA. I think that we actually
need to define a body of operations in which it is denied and
deniable and not acknowledged as such, but is not regarded as
though it were covert. And yet the Director is in the
newspapers talking about it. I think that we actually need to
define some area between those things in order to be able to
talk precisely about these kinds of legal and policy issues.
So I think that there would actually be a great deal of
utility in inviting representatives from the intelligence
agencies to come and talk about how they classify these things.
I would be very interested in what Professor Banks has to say
in particular about this, because I think he has much more
experience.
But I think the failure to mention the CIA is largely on
account of the fact that there has been no explicit
acknowledgment of it. I think it needs to be named. I think the
CIA needs that protection. And somebody needs to invite them to
do that.
Mr. Flake. Before going to Professor Banks on that, if you
were a defense attorney, defending either uniformed or civilian
operator of drones, would you feel comfortable enough that the
statement from the administration gives your client sufficient
coverage there?
Mr. Anderson. I feel comfortable that it does give
sufficient coverage. But I also think that it is kind of
missing the point in a certain way. We know what is going on,
it is acknowledged, it is out there on the table and I think
that it has to be discussed in order to lay out clearly what
the legal rules are.
I also think that, I mean, if I were a defense attorney, I
would certainly assert that. I think that speaking as a neutral
professor, I think that it needs to be said, I think that the
CIA personnel need to know what the views of the political
branches are on this, and need to have it clearly and
explicitly stated.
It cannot be left in limbo, so to speak, of having even a
small amount of uncertainty as to whether their actions are
regarded as lawful or not. If Professor O'Connell's views about
this are right, somebody should say so and make that policy. If
the views that I have articulated are right, that needs--but
the uncertainty needs to be taken away here.
Mr. Flake. Mr. Banks.
Mr. Banks. I agree with Professor Anderson that greater
clarity for the role of the intelligence community in this area
would be a positive development. I think clearly Mr. Koh is
speaking on behalf of the State Department and he was
articulating what he said to be his view of the international
legality of these operations. But he made reference not only of
course to international law and the laws of armed conflict, but
also to the Constitution of the United States and the
President's powers as well as the authorization for the use of
military force.
He did not, of course, refer to the intelligence laws that
I have spoken about here this morning, and I think that is
regrettable. In part, I believe it is for the reasons that Ken
suggested, they don't illuminate the issues or supply the
criteria that we might have to begin to evaluate these
operations. Some kind of a middle ground that Professor
Anderson suggests between deniable and Mr. Panetta in the
newspapers I think might be a helpful development.
Ms. O'Connell. I think we really do owe our CIA operatives
very good and clear legal advice. I think they were let down
very badly by the advice with regard to interrogation, tactics
and I think they are being let down now if they are being told
that the drone operations are lawful.
It is one thing to develop a theory within the United
States that could somehow justify it and that you have heard
from my colleagues today. It is another thing in terms of what
foreign countries believe, especially where those CIA agents
are operating in Pakistan, Afghanistan or other countries. And
in those countries, I am confident that the position I have
presented to you is the one that is held there.
So our CIA agents who are involved in this activity are in
jeopardy. We have 17 CIA agents who are under indictment in
Italy for kidnaping. And at any time, if the Pakistani
authorities decide that they are no longer friendly to us, or
the Yemeni authorities, they can arrest and put on trial for
murder persons involved in the CIA and these killings. That
position should be clarified to our agents.
It is one thing that we believe we are right in our
theories, it is another thing what the rest of the world
thinks. And I believe that our agents are in serious jeopardy.
Mr. Flake. Thank you.
Mr. Glazier. Congress can certainly clarify as a matter of
domestic law and help the CIA folks out that way. But I think
as a matter of international law, to participate in a killing,
the best you can hope for is to have the belligerent's or
combatant's privilege and immunity under the international law
of war. But that we can only confer upon our uniformed military
personnel. So I don't think there is anything that we can do
that, as a matter of international law or as a matter of the
laws of other countries, that is going to get the CIA folks out
of the risk of some sort of foreign prosecution.
Mr. Anderson. I would add to that, I am sorry to take more
time on this, but I would add to that Spain, for example, has
been moving to alter its law in universal jurisdiction. They
have had conversations with some people in Spain that were
connected to that process and said, was that because of U.S.
pressure that was brought about concerns about bringing
prosecutions exactly of this kind that Italy has brought? And
the answer was, no, the answer was nobody thinks that the
U.S.'s view is important, because it will never wind up backing
it up. And what matters is actually that we are concerned that
China will be upset with this and that it would wind up cutting
us off from contracts.
So I think that there are political avenues by which the
United States can make it much, much more costly in order for
foreign countries to be able to go after its personnel in that
way. When the United States has formulated a view about what it
thinks is the proper view of international law on that, it has
political avenues that it is able to pursue, and it should be
doing so.
Mr. Tierney. But as things stand right now, every single
one of you thinks that a CIA person in country X that is not
Afghanistan or Pakistan or whatever manipulating unmanned
aerial vehicles and killing people with them is liable under
international law for arrest and prosecution? Do we all agree
to that? You do not. OK. You think that they are somehow
immune?
Mr. Anderson. I think it depends very much on where they
are doing it. If one is talking about Afghanistan or Pakistan--
--
Mr. Tierney. No, I excluded those.
Mr. Anderson. Sorry. Then, it depends again on where it is
they were doing it in relation to international law. They may
be liable under domestic law and that is one of the reasons
that the CIA as a civilian agency is a civilian agency, that we
have concluded as a country, as other states have, that we need
to have a civilian capacity for covert action. Whether that is
a good idea or a bad idea is another question.
But we have decided that we need a capacity for covert
action that can involve civilian agents involved in violations
of the domestic laws of other countries. And that may be a
terrible idea, and maybe the Church Commission should have
pushed that all the way to the point of saying, that will never
happen again as a matter of U.S. law. But as it stands, it is
lawful under domestic law, even if it is unlawful under the
local law of the place in which those agents are operating.
And that is one of the conditions that separates the CIA
from the military. It may be a very bad policy or it may be a
very good policy. But as a matter of law, that is, I think,
where it stands.
Mr. Tierney. Thank you.
Mr. Foster.
Mr. Foster. Thank you.
Do any of you know whether an adequate historical record is
being made of the activities of drones? Who signed off on which
actions? No idea? OK.
I am just sort of looking at the mirror image problem. For
example, if, let's say, the Taliban had the technology to
launch a drone attack on the operators of the drones that are
attacking them, so would it be legitimate under international
law and U.S. policies for some Taliban that had the technology
to go and launch drones? First off at the control bunkers in
Nevada or wherever they are, and/or at the homes of where the
operators live that do this, under the same set of standards
that we apply to taking out those?
Mr. Glazier. Absolutely. The drone operators are
essentially fulfilling a combatant function. So my
interpretation is that they then become combatants. Now, of
course, the CIA people, we might argue that they are civilians
and therefore they fall under the ``directly participating in
hostilities'' standard. But certainly, they are fulfilling such
a military role that they are pretty liable. But the military
people, definitely, if we are in an armed conflict, then the
rules that govern armed conflict are supposed to apply even
handedly to both sides. And just as we can target, we can in
fact be targeted in turn.
Ms. O'Connell. I disagree with that, because I don't see
the United States as the scene of an armed conflict. So there
would be no right for others to bring battlefield weapons to
this country. The right of persons in Afghanistan to resist our
efforts, the persons who are trying to topple Hamid Karzai,
they have the right to fight lawfully and to push the United
States out of their country there. But no, no one has a right--
--
Mr. Foster. It is the joystick operators, it is where the
explosion takes place but not where the joystick is operated.
Ms. O'Connell. If the persons in the CIA who are in the
United States are committing unlawful activities because they
have no right to kill in that setting. But that is a crime
under international law. It is not something that allows
another person, another group to come and use battlefield
weapons here. They should follow law enforcement procedures and
make complaints to the United States. Of course, they are in no
position to do that.
So no, I really respect the battlefield. And I would never
say that any of these groups that are fighting us and have the
right to fight us in Afghanistan, for example, if they are
carrying weapons openly and displaying that they are members of
an organized armed group, they have the right under
international law to fight us there. But they don't have the
right to follow that here. There is no necessity to bring that
fight here, and they don't have the right even to attack
persons who are committing unlawful----
Mr. Foster. So you think command and control centers
generally outside the field of combat are off limits from
your----
Ms. O'Connell. No, under international law governing the
use of force, the principle of necessity says that you can only
use that armed force that is necessary to accomplish the
military objective. The battle that we are fighting in
Afghanistan now is to rid that country of insurgents. The
limits on necessity in terms of what those insurgents can do
have to do with our operations there.
And I would not say, there is some disagreement, I admit
that this is not as clear a view, but it is part of the modern,
growing trend toward focusing on necessity. So even I would say
a command and control center outside the zone of armed conflict
away, far away from the battlefield, and of course, that
conflict in Afghanistan is being run by Afghanistan. We are
there at their invitation. So we are not really the command and
control in terms of international law.
So no, I think this country should be protected from those
kinds of battlefield attacks.
Mr. Glazier. Well, that is contrary to the Supreme Court's
decision in Quirin. And it is contrary to the law of war as
nations understand it. Because when a nation goes to war with
another nation, the two places that are clearly legitimate
theatres of military operation are the territory of those
belligerent parties.
And in Quirin, the Nazi saboteurs, the legal issue was not
the Germans came to the United States to blow up war
industries. The Supreme Court basically indicates in the
decision that had they kept their uniforms, they had every
right to do that. It was the fact that they shed their uniforms
and buried them on the beach and tried to blend in with our
civilian population that made them unlawful combatants.
So I don't believe that the United States can shelter
itself from counter-attack by launching missiles from our own
territory. Under Professor O'Connell's theory, we can fire
ballistic missiles from the United States or we can fire cruise
missiles from far offshore and yet, because those individuals
are not on the battlefield, as she defines it, they are immune
from military attack. This would be a theory that would be
wonderful for the U.S. military. But it is simply not the law.
Ms. O'Connell. We are not at war with Afghanistan. We
currently, since Hamid Karzai took over, we are there at their
invitation. So no, they are not launching attacks. The state of
Afghanistan, the state of Pakistan, are not at war with the
United States. We are assisting them in putting down
insurgencies. So the theatre of operations are in those
countries under the leadership of those governments.
So this has nothing to do with Kerin, in which we were at
war with Germany, another state that had sent those individuals
here. Not to mention that is old law. But it has nothing to do
with the current situation that we are talking about. We are
not at war with Pakistan or Afghanistan or Yemen.
Mr. Foster. So if they had declared war on us in whatever
category, then that would give them the right to go after our
operators?
Ms. O'Connell. After October 7, 2001, when we went to war
with Afghanistan, we took the fight there, if they had been
capable of making counter-attacks under this territory, of
course they could do that in self-defense or in a war with the
United States. The same with Iraq. In March 2003, when we
launched an attack on the state of Iraq, yes, Iraq, if they had
had the capability, they could have launched a counter-attack
on us. Our leaders should always remember that when they attack
foreign countries, that it can come to the homeland.
But in both cases, our forces were far too strong and
protected the homeland. It didn't come to that.
But in Iraq, Afghanistan, Pakistan, we are not at war with
those countries. We are in support of their leadership.
Mr. Foster. Does anyone else have any comments on this?
Mr. Anderson. I disagree almost entirely with the analysis
that has been presented. But I would actually make a slightly
different comment, which is, I think it is very important for
the subcommittee here to understand just both how much support
there is for the various views if one goes to the international
law community outside the United States, or if one goes to
national security scholars here within this country, in that
there is really a sense of ships passing in the night here, in
which the consequences of one view or another are really
serious. We are talking about criminal law, we are talking
about acts of things that could potentially be considered as
murder by the people that are carrying them out.
How one reconciles those things or doesn't reconcile them
really matters. It matters as a matter of deep criminal law in
this. My view on this particular issue is to agree with
Professor Glazier, with one additional point, which is, we have
long said, and I think correctly so, that where we are dealing
with a terrorist group, that terrorist group doesn't actually
have any right to be taking up arms at all.
So the idea that there is a reciprocal right to be able to
come after us, it would be the view that the British had when
the IRA said, ``we are going to adhere strictly to the laws of
war, and we are just going to go after British soldiers in some
base somewhere abroad.'' The view of the British, correctly,
was, this is a terrorist group, and they have no right to be
taking up arms against us in any form. That will all be
considered criminal.
And our view of al Qaeda would be exactly the same way,
that the fact that we are launching attacks on them doesn't
actually give them the right to launch attacks on us. It is not
reciprocal in that way, because of the nature of the group.
Mr. Glazier. It matters very much how we define the armed
conflict. If Professor O'Connell's view is correct, that we are
simply now in a non-international armed conflict with
Afghanistan, in other words, the conflict is simply between
Afghanistan and remnants of the Taliban, and we are now there
entirely at their invitation, that does make a difference. But
I think that we are still in the armed conflict that Congress
constitutionally authorized in the authorization of the use of
military force. So I think that the United States still
essentially has the right to combat the Taliban and al Qaeda in
our own right. But if we do so, then the flip side of that is
it makes us liable to attack ourselves.
I would also suggest that there is an alternative. One
choice is to use this paradigm of the law of armed conflict.
But another paradigm is sort of the piracy, or essentially, I
think it is the way that Britain chose to treat the IRA, where
because of the robustness of the threat, it is considered to be
beyond the scope of law that ordinary law enforcement agencies
can deal with and military force is required.
That is exactly how pirates were treated historically. But
it was essentially conducted under laws much more akin to law
enforcement rules, so that the military was under an
obligation, even with pirates, little known, but they didn't
just shoot pirates first and ask questions later. They at least
made an effort to capture them. Then when they were captured,
they were dealt with under a law enforcement paradigm and
brought home for trial, under the constitutional provisions
that govern a normal civilian trial.
So that is an option that is available to this government
as a policy choice, to choose to treat terrorists essentially
as pirates, or as terrorists have been treated in the past,
using the military under constraints that are much more akin to
law enforcement than to law of war.
Ms. O'Connell. I think David Glazier is exactly right, and
we have really come to a crunch point. Are we in an armed
conflict in Afghanistan and Iraq right now? Is that where we
are engaged in armed conflict? Or are we really actually in an
armed conflict all over the world with these non-state actors?
I just suggest to you again that the international lawyers
who are specialists in this law around the world do not view it
this way. Our armed forces know they are in an armed conflict
in Afghanistan and in Iraq. That is the reality.
Mr. Tierney. Thank you all.
Mr. Welch, any more questions?
Mr. Welch. Just an observation. I think that what you are
saying now, the panel, goes to the heart of the challenge for
us in Congress. Much of the analysis depends on what the nature
of the conflict is, whether it is a police action. And as I
understand it, many other countries that have been faced with
terrorist threats have been the recipient of consequences of
those threats have defined it more as a police action. Our
country has defined it as an international global war on
terror. That really guides analysis as much as anything else.
I appreciate all your contributions here. Thank you. Thank
you, Mr. Chairman.
Mr. Tierney. Thank you. I think you have exhausted the
panel up here. We have a lot of different things to mull over
and we will continue to read. The ACLU statement has just come
in and I will share that with the other members of the
committee as well.
Do any of you have any final words that you want to leave
with us?
Mr. Banks. I would say that the metaphor that Professor
Anderson used just now is quite apt, the ships passing in the
night, different legal paradigm here. As Professor O'Connell
just said, the prospect of asymmetric war with non-state actors
does not fit neatly within any of the paradigms that have been
discussed here today. It would behoove, I think, the Congress,
to grapple with the possibility of making adaptations or
recognizing new dimensions of legal oversight that could allow
us to adapt the laws that we have been working with for more
than 200 years to this new era of warfare.
Mr. Tierney. Do you have any of those adaptations in mind
in particular?
Mr. Banks. I have a few. I think that considerable
oversight improvement could be made in the area of intelligence
that we have been speaking about here today. I think back to
areas that are off today's topic, I think there is considerable
work that is being done in the academic community and elsewhere
on changes in detention, classification of fighters, targeting
and the like that deserve congressional attention.
Mr. Tierney. Thank you.
Mr. Glazier. I would just like to offer the thought that, I
tried to focus my remarks today on the law. And as has been
noted by Professor O'Connell, there are real policy issues at
stake as well. My personal belief is that in confronting these
threats that the law of war is not an adequate solution, that
there are, for many reasons, including the fact that we need to
engage in activities in other friendly countries, even European
countries, where there may be terrorist cells, we are dependent
to a large measure on using criminal law in its standard form.
And we are depending on international cooperation.
So it seems to me that one of the most important reasons to
try to ground our conduct across the board in an area of law is
to facilitate that international cooperation and to lay the
groundwork for the ability to call upon, even to demand upon,
other nations to cooperate with us in this effort. We have, for
example, a whole series of terrorism treaties which basically
require international cooperation in the field. Where we choose
to exclusively treat this as an armed conflict, though, we give
other countries the right essentially to step outside the scope
of those terrorism treaties and say, look, the United States is
at war, we don't have to cooperate in an armed conflict.
But if we don't conduct those portions of the operations
that we choose to consider to be an armed conflict, in
accordance with that law, I think we damage our credibility and
we impair cooperation in those areas that we do want to treat
under the law of criminal law.
Mr. Tierney. Well stated.
Ms. O'Connell. I want to echo what Mr. Duncan said, that we
shouldn't exaggerate what al Qaeda is. There was a report on
National Public Radio on Monday of this week that in fact, al
Qaeda is losing significant support in the Muslim world because
of their lawlessness, because of their violence. I firmly
believe that we, the United States, can help bring about the
final demise of al Qaeda through our commitment to the rule of
law, especially by strict compliance with rules governing the
use of lethal force.
We have rules, they are in place. We shouldn't try to
manipulate them, to reinterpret them, to find loopholes in
them, to say that they are quaint, obsolete, no longer of use
to this country. We should uphold them, we should honor them,
and we should distinguish ourselves from our enemies by our
commitment to them. Thank you.
Mr. Tierney. Thank you.
Mr. Anderson. I join Professor Banks particularly in what
he said about oversight. I would also again reiterate my
support for Dean Koh's statement. I think that it provided a
very solid base for the United States to go forward. I think
there are ways in which the Congress could build on those and
invite the administration to elaborate those further, starting
in the first place with specifically identifying the CIA as an
actor in this.
At the end of the day, I believe that it is not about
drones. I think that it is really a question about the proper
role of the CIA in this, the proper role of covert action, the
proper role of the use of advanced technologies by actors that
may be outside of the military. I think those are enormously
important policy and legal choices that the Congress will have
to confront.
Mr. Tierney. All of us are grateful for your intellect and
your time and your ideas that you have shared with us. I can
only imagine that the people that study in your classes must
enjoy being there and must get a lot out of it.
So thank you very much. And again, we always try to hold
out the prospect that if we need to come back to you for your
advice and consent, we are hoping that you will welcome that.
Again, thank you all very much. This meeting is adjourned.
[Whereupon, at 11:45 a.m., the committee was adjourned.]