[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


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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

                              ----------                              
                                                                   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

                              ----------                              


                       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:]

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    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.]

                                 
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