[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]



 
DRONES AND THE WAR ON TERROR: WHEN CAN THE U.S. TARGET ALLEGED AMERICAN 

                          TERRORISTS OVERSEAS?
=======================================================================


                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY

                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 27, 2013

                               __________

                            Serial No. 113-2

                               __________

         Printed for the use of the Committee on the Judiciary


      Available via the World Wide Web: http://judiciary.house.gov




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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
HOWARD COBLE, North Carolina         ROBERT C. ``BOBBY'' SCOTT, 
LAMAR SMITH, Texas                       Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
SPENCER BACHUS, Alabama              ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO R. PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     JUDY CHU, California
TED POE, Texas                       TED DEUTCH, Florida
JASON CHAFFETZ, Utah                 LUIS V. GUTIERREZ, Illinois
TOM MARINO, Pennsylvania             KAREN BASS, California
TREY GOWDY, South Carolina           CEDRIC RICHMOND, Louisiana
MARK AMODEI, Nevada                  SUZAN DELBENE, Washington
RAUL LABRADOR, Idaho                 JOE GARCIA, Florida
BLAKE FARENTHOLD, Texas              HAKEEM JEFFRIES, New York
GEORGE HOLDING, North Carolina
DOUG COLLINS, Georgia
RON DeSANTIS, Florida
KEITH ROTHFUS, Pennsylvania

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel


                            C O N T E N T S

                              ----------                              

                           FEBRUARY 27, 2013

                                                                   Page

                           OPENING STATEMENTS

The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3

                               WITNESSES

John B. Bellinger, III, Partner, Arnold & Porter LLP
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Robert Chesney, Charles I. Francis Professor in Law, Associate 
  Dean for Academic Affairs, University of Texas School of Law
  Oral Testimony.................................................    21
  Prepared Statement.............................................    23
Benjamin Wittes, Senior Fellow, The Brookings Institution
  Oral Testimony.................................................    35
  Prepared Statement.............................................    37
Stephen I. Vladeck, Professor of Law, Associate Dean for 
  Scholarship, American University Washington College of Law
  Oral Testimony.................................................    54
  Prepared Statement.............................................    58

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     4
Prepared Statement of the Honorable Ted Poe, a Representative in 
  Congress from the State of Texas, and Member, Committee on the 
  Judiciary......................................................     5
Material submitted by the Honorable Ted Poe, a Representative in 
  Congress from the State of Texas, and Member, Committee on the 
  Judiciary......................................................    86


DRONES AND THE WAR ON TERROR: WHEN CAN THE U.S. TARGET ALLEGED AMERICAN 
                          TERRORISTS OVERSEAS?

                              ----------                              


                      WEDNESDAY, FEBRUARY 27, 2013

                        House of Representatives

                       Committee on the Judiciary

                            Washington, DC.

    The Committee met, pursuant to call, at 10:09 a.m., in room 
2141, Rayburn House Office Building, the Honorable Bob 
Goodlatte (Chairman of the Committee) presiding.
    Present: Representatives Goodlatte, Chabot, Issa, King, 
Franks, Gohmert, Jordan, Poe, Chaffetz, Marino, Gowdy, 
Labrador, Holding, Collins, DeSantis, Rothfus, Conyers, Nadler, 
Scott, Lofgren, Johnson, Pierluisi, Deutch, Bass, DelBene, and 
Garcia.
    Staff Present: (Majority) Shelley Husband, Chief of Staff & 
General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief 
Counsel; Allison Halataei, Parliamentarian & General Counsel; 
Sam Ramer, Counsel; Kelsey Deterding, Clerk; (Minority) Perry 
Apelbaum, Staff Director & Chief Counsel; and Danielle Brown, 
Parliamentarian; and Aaron Hiller, Counsel.
    Mr. Goodlatte. Good morning. The Judiciary Committee will 
come to order.
    Without objection, the Chair is authorized to declare 
recesses of the Committee at any time, and we welcome everyone 
to today's hearing on ``Drones and the War on Terror: When Can 
the U.S. Target Alleged American Terrorists Overseas?''
    I will recognize myself first for an opening statement. On 
February 4, 2013, a confidential Justice Department white paper 
outlining the legal justification for targeted killings of U.S. 
citizens overseas was leaked to NBC News. The leak of this 
white paper brought renewed attention to an issue largely 
ignored during President Obama's tenure. Is the targeted 
killing of alleged American terrorists appropriate and under 
what circumstances?
    The white paper also confirms a palpable shift in war on 
terror policy by this President. In 2007, Barack Obama, the 
then-junior Senator from Illinois, laid out his position on the 
war on terror. ``To build a better, freer world, we must first 
behave in ways that reflect the decency and aspirations of the 
American people. This means ending the practices of shipping 
away prisoners in the dead of night to be tortured in far-off 
countries, of detaining thousands without charge or trial, of 
maintaining a network of secret prisons to jail people beyond 
the reach of the law.''
    The same President who opposes the detention of foreign 
terrorists, who opposes the use of enhanced interrogation 
techniques on foreign terrorists, and who attempted to bring 
foreign terrorists to trial in New York City is now personally 
approving the killing of Americans. Ironically, the detention 
facility in Guantanamo remains open, and Khalid Sheikh Mohammed 
and his co-conspirators are being tried before a military 
commission.
    Following the release of the white paper, a bipartisan 
group of Committee Members requested the opportunity to review 
the memos that formed the basis of the white paper. Our request 
was denied.
    One of President Obama's first acts as President was to 
release the Bush Justice Department's enhanced interrogation 
techniques memos to the public. But he now refuses to provide 
his Justice Department's targeted killing memos not just to the 
public, but even to congressional overseers. We also invited 
the Justice Department to testify today. That request was 
denied, too.
    According to at least one estimate, drone strikes against 
suspected al-Qaeda terrorists have increased sixfold under the 
Obama administration. Anywhere from 2,500 to 4,000 people have 
been killed by these strikes. What is more, this Administration 
is not just targeting foreign fighters, but American citizens 
as well.
    President Obama ordered the killing of Anwar al-Awlaki, the 
American-born al-Qaeda cleric. In September of last year, U.S. 
forces killed al-Awlaki and his 16-year-old son in a drone 
strike in Yemen. America now knows the criteria used to 
nominate an American for targeted killing.
    The white paper sets forth a legal framework for when the 
U.S. Government can use lethal force against a U.S. citizen who 
is a senior operational leader of al-Qaeda or an associated 
force and is located in a foreign country outside the area of 
active hostilities. The Justice Department claims that in such 
a case, lethal force would be lawful where three conditions are 
met.
    An informed high-level official of the U.S. Government has 
determined that the targeted individual poses an imminent 
threat of violent attack against the United States. Two, 
capture is infeasible, and the United States continues to 
monitor whether capture becomes feasible. Three, the operation 
would be conducted in a manner consistent with principles of 
the laws of war.
    Today's hearing will examine the Justice Department's white 
paper and the constitutional issues surrounding the targeted 
killing of Americans overseas. We have assembled an impressive 
panel of experts to help the Committee analyze these important 
issues.
    Let me ask members of the staff to locate where that 
construction work is going on and ask them to allow us to 
conduct the hearing without the pain of drilling.
    The targeted killing of Americans overseas has ignited a 
debate about the breadth of a President's commander-in-chief 
authority and the standard that should apply when targeting 
Americans. Is the white paper a fair reading of the law? Under 
what circumstances can the President decide to kill an American 
citizen? Is there any due process of law that must be granted 
before the commander-in-chief can kill an American? Does the 
Administration's approach comport with the law? Should the 
President be able to decide unilaterally to kill Americans?
    The American people deserve to know and understand the 
legal basis under which the Obama administration believes it 
can kill U.S. citizens and under what circumstances. Obviously, 
were the Justice Department memos made available or the Justice 
Department here to testify today, Members of the Committee 
could have a fuller understanding of the Administration's legal 
rationale. However, today's hearing will provide an initial 
public debate of the issue.
    And now it is my pleasure to recognize the Ranking Member 
of the Committee, the gentleman from Michigan, Mr. Conyers, for 
his opening statement.
    Mr. Conyers. Thank you, Chairman Goodlatte and Members of 
the Committee and our distinguished witnesses present.
    We are here examining a pressing matter, namely the use of 
unmanned aerial vehicles, drones, to strike at suspected 
terrorists abroad. First, let us make clear the House 
Judiciary's jurisdiction over the matter.
    These are serious constitutional considerations involved, 
and that is what this Committee has been created for, as well 
as civil rights questions, which are also involved in this 
operation. Our Committee has direct oversight of the Department 
of Justice, which has issued legal opinions, although 
classified, that purport to establish the legal basis for the 
use of lethal force against terrorist suspects.
    Now in the course of this issue that has been raised, 
numerous letters have been sent. And I want to point out that 
our latest one that was joined in with myself, Chairman 
Goodlatte, former Chairman Jim Sensenbrenner, Trent Franks, 
Jerry Nadler, and Bobby Scott, who wrote again to the President 
to renew our requests for all legal opinions related to drone 
programs.
    I am pleased that we reached a clear bipartisan consensus 
on this issue. This Committee requires those documents to 
fulfill its oversight responsibility. This isn't a witch hunt. 
This is an inquiry, and we are all cleared for top secret. And 
we will work together to convince the Administration to satisfy 
our requests.
    Let us examine a couple issues here. Targeted strikes 
against United States citizens, targeted strikes generally, and 
three, the odious so-called signature strikes. Now the need for 
oversight is clear. I am not convinced, as the title of the 
hearing before us suggests, by the Administration's legal 
rationale for the targeted killing of any United States citizen 
overseas.
    The white paper describes a balancing test for the Fourth 
Amendment, unlawful seizure of a person or a life, and the 
Fifth Amendment, due process, which is tilted so far in favor 
of Government interests that a potential target appears to have 
little chance at meaningful due process when he is nominated 
without his consent, of course, to the so-called kill list.
    I also remain unconvinced about the targeted killing of 
terrorist suspects who are non-citizens. Although the 
Administration appears to rest its claim of authority on the 
Authorization for Use of Military Force passed by the Congress 
in 2001, it is not clear that Congress intended to sanction 
lethal force against a loosely defined enemy in an indefinite 
conflict with no borders or discernible end date.
    And I am considerably troubled by the widely reported use 
of so-called signature strikes, where suspects need only 
display suspicious activity, but their identities are unknown 
prior to the Government's use of lethal force against them. 
That may be a CIA activity that should be sent over to the 
Defense Department, by the way.
    Today--and I rush to a conclusion--we want to accomplish 
the following. We need to know more, and I hope that the way 
that we conduct this hearing individually among our Members of 
the Committee will convince the Administration that this is not 
personal, nor political, and that all we are seeking is 
information to which we are duly entitled. We have one 
Committee on Intelligence that has gotten two reports out of a 
dozen or more? That is not acceptable.
    And with all due respect to an Administration that I 
support, we are creating a resentment on a visceral level, as 
General Stanley McChrystal has echoed, on a level that we can't 
even begin to imagine. McChrystal was the architect of 
counterinsurgency in Afghanistan.
    ``The resentment created by the American use of unmanned 
strikes is much greater than the average American 
appreciates.'' Well, I think we appreciate it, and I think that 
we want to have this become the first of a number of hearings.
    I conclude by saying I don't think that the Attorney 
General of the United States can decline to come before this 
Committee on a subject that is so clearly within our 
jurisdiction, Mr. Chairman.
    And I yield back my time.
    Mr. Goodlatte. I thank the gentleman for that expression of 
concern. I share it, and I will work with him and the other 
Members on his side of the aisle, as well as the other Members 
on our side of the aisle to see what we can do to bring about 
better cooperation because we are seeking information that this 
Committee is entitled to have.
    We have a very distinguished panel. Without objection, all 
the Members' opening statements will be made a part of the 
record.
    [The prepared statement of Mr. Conyers follows:]
Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary
    Thank you, Mr. Chairman. I very much appreciate that our Committee 
is examining such a pressing matter: the use of unmanned aerial 
vehicles, or ``drones,'' to strike at suspected terrorists abroad.
                              jurisdiction
    Let me be clear: the House Judiciary Committee has direct 
jurisdiction over this issue.
    We are the Committee in the best position to assess the serious 
constitutional and civil rights questions presented by the drone 
program.
    Our Committee also has direct oversight of the Department of 
Justice, which has issued legal opinions, albeit classified, that 
purport to establish the legal basis for the use of lethal force 
against terrorist suspects.
    Over the course of the 112th Congress, I, along with my colleagues 
Representatives Jerry Nadler and Bobby Scott, wrote several letters to 
Attorney General Eric Holder asking him to share those legal opinions 
with the Committee.
    These letter requests were made on January 18, 2012, May 21, 2012, 
and December 4, 2012.
    Although we did not receive the requested memoranda, the Justice 
Department did provide us with a copy of the recently-publicized white 
paper on the targeted killing of U.S. citizens.
    Unfortunately, the white paper raises more questions than it 
answers, and does little to address our concerns regarding the broader 
use of lethal force against terrorist suspects.
    On February 8, 2013, Chairman Goodlatte and I, together with 
Representatives Jim Sensenbrenner, Trent Franks, Jerry Nadler, and 
Bobby Scott, wrote to President Obama to renew our request for all 
legal opinions related to the drone programs.
    I am pleased that we have reached a clear, bipartisan consensus on 
this issue: this Committee requires those documents to fulfill its 
oversight responsibilities, and we will work together to convince the 
Administration to satisfy our request.
                    concerns with the drone programs
    The need for oversight is clear. I am not convinced, as the title 
of the hearing may suggest, by the Administration's legal rationale for 
the targeted killing of a United States citizen overseas.
    The white paper describes a balancing test for Fourth and Fifth 
Amendment rights titled so far in favor of government interests that a 
potential target appears to have little chance at meaningful due 
process when he is nominated to the so-called ``kill list.''
    I also remain unconvinced about the targeted killing of terrorist 
suspects who are non-citizens.
    Although the Administration appears to rest its claim of authority 
on the Authorization for Use of Military Force passed by Congress in 
2001, it is not clear to me that Congress intended to sanction lethal 
force against a loosely-defined enemy in an indefinite conflict with no 
borders and no discernible end date.
    And I remain deeply troubled by the widely reported use of so-
called ``signature strikes,'' where suspects display suspicious 
activity but their identities are unknown prior to the government's use 
of lethal force against them.
    To date, the Administration has not even acknowledged that this 
program exists--let alone provided this Committee with the information 
it requires to examine the legality of the program.
                            global concerns
    I am, of course, aware that drones offer a relatively precise means 
for targeting our enemies. If used responsibly, they can limit civilian 
casualties and do so without putting additional American troops in 
danger.
    But we must be mindful that the rest of the world is watching us. 
In a recent interview, General Stanley McChrystal--the principal 
architect of U.S. counterinsurgency strategy in Afghanistan--reminded 
us that ``the resentment created by American use of unmanned strikes . 
. . is much greater than the average American appreciates.''
    He continued, ``They are hated on a visceral level, even by people 
who have never seen one or seen the effects of one.''
    No matter how far removed we are from the battlefield, we must 
remember that it still feels like war when missiles strike.
    And, the United States will not be the only nation with this 
tactical capability for much longer.
    Accordingly, the decisions we make--the process this Committee 
finds necessary before our government may lawfully kill a suspected 
terrorist, whether or not that suspect is a citizen--will set the 
example for those who follow.
    I thank the Chairman, and I yield back.
                               __________

    [The prepared statement of Mr. Poe follows:]
   Prepared Statement of the Honorable Ted Poe, a Representative in 
    Congress from the State of Texas, and Member, Committee on the 
                               Judiciary
    Today's hearing deals with one of the most important issues we face 
here in Congress, the question of when and where our Constitutional 
rights apply as Americans. We are here today because the Department of 
Justice has so far repeatedly refused to provide Congress with the 
legal and constitutional justifications that they use to authorize the 
killing of a U.S. citizen who is abroad and allegedly a member of al-
Qaeda or an associated force. The House Judiciary committee has 
requested this information, and it has been denied by the Department of 
Justice. Congressman Gowdy and I have written two letters to the 
Department of Justice requesting details on this justification and the 
Department of Justice has not answered us. The first letter was sent 
nearly three months ago. And, I would like to note, the Department of 
Justice is not here to testify today.
    In fact, we are left to try and make sense of a vague outline from 
the DOJ white paper that was ``leaked'' to the media that lethal force 
is authorized if:

        1.  An informed, high-level official of the U.S. government has 
        determined that the targeted individual poses an imminent 
        threat of violent attack against the United States;

        2.  Capture is infeasible, and the United States continues to 
        monitor whether capture becomes feasible;

        3.  The operation would be conducted in a manner consistent 
        with applicable law of war principles.

    But these guidelines leave us with more questions than answers.

          Who is a ``high level official''? Who is this 
        individual accountable to?

          What intelligence do they rely on? Does there have to 
        be multiple sources? What if the intelligence is wrong?

          If targeted assassinations are outlawed under 
        Executive Order 12333, how does a drone strike differ from a 
        targeted assassination?

    And then, there is the question of whether or not this legal 
interpretation could involve suspected terrorists in the United States. 
So far, the Administration's response has been they have ``no plans'' 
for the use of targeted drone strikes within the United States but that 
seems to at least leave open the possibility.
    What about suspects in Mexico? France? Or other countries we are 
allies with? Is the Government permitted to target a U.S. Citizen 
anywhere in the world? Under this justification, does it mean that the 
Constitution no longer applies when a ``high ranking official'' 
determines that somebody is a terrorist? Should this ``high ranking 
official'' act as Judge, Jury and Executioner all at once? Don't get me 
wrong, if an American citizen decides to join al-Qaeda and takes arms 
up against the United States, they deserve whatever is coming to them, 
however shouldn't we have some sort of judicial review to look at the 
evidence to make sure we have the facts straight? After all, 
intelligence is sometimes wrong. That is the point of judicial review. 
Shouldn't we be 100% sure that this individual actually did join al-
Qaeda? Not every case is going to be as clear as the Anwar al-Aulaqi 
case. Does it make sense to have a higher legal standard in order to 
listen to American's phone calls abroad then to target and kill that 
individual? (FISA court) These are all questions that Congress needs to 
weigh in on and that's why the Department of Justice needs to give us 
the information we have requested.
                               __________

    Mr. Goodlatte. And we will turn now to our panel. We have a 
very distinguished panel joining us today, and I will begin by 
introducing the witnesses.
    Our first witness is Mr. John Bellinger, a partner at 
Arnold & Porter LLP, a law firm here in Washington, D.C., where 
he advises sovereign governments and U.S. and foreign companies 
on a variety of international law and U.S. national security 
law issues.
    Mr. Bellinger is also an Adjunct Senior Fellow in 
International and National Security Law at the Council on 
Foreign Relations, where he directs the Program on 
International Justice. He served as the Legal Adviser for the 
U.S. Department of State under Secretary of State, Condoleeza 
Rice, from April 2005 to January 2009, earning the Secretary of 
State's Distinguished Service Award.
    Mr. Bellinger received his Bachelor's degree from the 
Woodrow Wilson School of Public and International Affairs at 
Princeton University, his J.D. from Harvard Law, and most 
recently, a Master's degree in Foreign Affairs from the 
University of Virginia. We are fortunate to have him and his 
expertise with us today.
    Our second witness today is Professor Robert Chesney, the 
Charles I. Francis Professor in Law and Associate Dean for 
Academic Affairs at the University of Texas School of Law. 
Professor Chesney specializes in a broad range of issues 
regarding U.S. national security law, such as military 
detention, the role of the judiciary in national security 
affairs, and terrorism-related prosecutions. He is a 
nonresident Senior Fellow of the Brookings Institution, as well 
as a team member of the Council on Foreign Relations. 
Previously, he served on President Obama's Detention Policy 
Task Force.
    Mr. Chesney earned his Bachelor's degree in Political 
Science and Psychology from Texas Christian University and 
subsequently graduated Magna Cum Laude from Harvard Law School. 
We welcome his experience and expertise.
    The third member of our witness panel is Mr. Benjamin 
Wittes, a Senior Fellow in Governance Studies at the Brookings 
Institution and co-director of the Harvard Law School Brookings 
Project on Law and Security. He is the author of ``Law and the 
Long War: The Future of Justice in the Age of Terror,'' 
published in June 2008, and the editor of the 2009 Brookings 
book, ``Legislating the War on Terror: An Agenda for Reform.''
    Mr. Wittes co-founded and is editor-in-chief of the Lawfare 
Blog, a nonideological discussion of ``Hard National Security 
Choices.'' Between 1997 and 2006, he served as an editorial 
writer for The Washington Post, specializing in legal affairs. 
Mr. Wittes is also an alumnus of Oberlin College. We thank him 
for serving as a witness today and look forward to his insight 
into this complex topic.
    Our final witness is Mr. Stephen Vladeck, a law professor 
from American University Washington College of Law, teaching 
courses in Constitutional Law, Federal Courts, International 
Criminal Law, and National Security Law, to name just a few. He 
is also a Fellow at the Center for National Security at the 
Fordham University School of Law in New York City. Mr. Vladeck 
has co-authored multiple legal textbooks and has served as a 
Law Clerk of appellate judges in both Florida and California.
    He earned his Bachelor's degree in History and Mathematics 
from Amherst College and his J.D. from Yale, where he served as 
the Executive Editor of the Yale Law Journal. We are pleased to 
have him with us today.
    We thank all of you for joining us. And Mr. Bellinger, we 
will started with you. Each witness has written statements that 
will be made a part of the record in their entirety. I ask that 
each witness summarize his or her testimony in 5 minutes or 
less.
    To help you stay within that time, there is a timing light 
on your table. When the light switches from green to yellow, 
you will have 1 minute to conclude your testimony. When the 
light turns red, it signals that the witness' 5 minutes have 
expired.
    Mr. Bellinger, welcome.

         TESTIMONY OF JOHN B. BELLINGER, III, PARTNER, 
                      ARNOLD & PORTER LLP

    Mr. Bellinger. There we go. Thanks very much, Mr. Chairman 
and Members of the Committee, for coming for this important 
hearing today.
    I dealt, as you heard, with many of the legal issues that 
are the subject of today's hearing when I served as the legal 
adviser for the National Security Council in the White House in 
the first term of the Bush administration. And then I was the 
legal adviser for the State Department in the second term of 
the Bush administration. I was in the White House situation 
room on 9/11 and spent all 8 years of my time dealing with many 
of these same issues.
    Now both the Bush and the Obama administrations have 
concluded that the targeted killing of al-Qaeda leaders is 
lawful under both U.S. and international law under certain 
circumstances. Let me start with U.S. law.
    The President's legal authority derives from the 
Authorization to Use Military Force Act of September 18, 2001, 
the AUMF, and also from the U.S. Constitution. The problem is 
the AUMF is now nearly 12 years old, and Congress should update 
it. It does not provide sufficient legislative authority for 
our military and intelligence personnel to conduct the 
operations necessary to defend against the terrorist threats 
that we face a decade after 9/11. And it also contains 
inadequate protections for those targeted or detained, 
including U.S. citizens.
    Of course, in addition to the statutory authority granted 
by Congress, the President also has broad authority under the 
Constitution to take necessary actions to defend the United 
States against terrorist threats.
    The targeted killing of American citizens raises additional 
legal issues because U.S. citizens have certain constitutional 
rights under the Fourth and Fifth Amendments of the 
Constitution even when they are outside the United States. But 
the extent of those rights is not clear. No U.S. court has 
previously opined on the issue of what amount of process is due 
to an American outside the United States before being targeted 
by his own government.
    Now I agree with the principal conclusions of the Justice 
Department white paper that reportedly summarizes the laws 
applicable to killing an American citizen who is a senior 
operational al-Qaeda leader. In particular, I agree that an 
American citizen who is a senior al-Qaeda leader outside the 
United States does enjoy constitutional right to due process. 
But I also agree that it is sufficient due process for a senior 
informed Government official to conclude that the individual 
poses an imminent threat of violence against the United States 
before targeting the individual with lethal force.
    I do not believe that prior judicial review is currently 
required or should it be required before the U.S. Government 
uses lethal force against an American citizen who is a senior 
al-Qaeda leader outside the United States. Now relevant to this 
Committee, the Congress may still want to specify the 
conditions and certain processes for targeting an American, and 
this Committee may want to consider legislation on this issue. 
But these processes should reside inside the executive branch 
with appropriate notice to Congress.
    Now both the Bush and Obama administrations have also 
concluded that international law permits the United States to 
use force through drone strikes or other means to kill al-Qaeda 
leaders in other countries in certain circumstances, and I want 
to emphasize that it is important for the United States to 
follow international legal rules rather than use force 
arbitrarily.
    The executive branch and Congress need to be aware that 
what is sauce for the goose is sauce for the gander. Unless the 
U.S. Government specifies clear international rules with which 
it is complying, the U.S. will lack credibility if it 
criticizes other countries, such as Russia or China, who may 
use drones to conduct targeted killings with which the U.S. 
disagrees.
    Now other countries, including many of our close allies, 
are growing increasingly alarmed by the large number of U.S. 
drone strikes, which reportedly have killed many civilians. The 
U.S. has a strong interest in demonstrating to our allies that 
its drone strikes are consistent with international law. 
Because if allies conclude that drone strikes violate 
international law or, worse, are war crimes, they are likely to 
stop sharing targeting information and may cease other forms of 
counterterrorism cooperation.
    So if the Obama administration wants to avoid losing the 
intelligence support of its allies, Administration officials 
need to work harder to explain and defend the legality of this 
program. The speeches given by Administration officials have 
been very valuable, but the Administration needs to do more to 
address growing international opposition to its use of drones. 
And the Administration needs to be more transparent about who 
it is targeting and the procedures it applies to ensure that 
its targets are appropriate and to limit collateral damage to 
civilians.
    I think the Obama administration should be able to release 
after the fact the names and background information of at least 
some of the people it has targeted. The release of more 
information should help address the concerns that U.S. targets 
individuals who do not pose significant threats.
    So, in closing, I want to commend this Committee for 
holding this hearing, and I want to end with a plea for more 
bipartisanship on counterterrorism issues. Republicans and 
Democrats will not always agree on the same approach to dealing 
with terrorism, but these issues should not be used to divide 
the American people. We all face a common threat from 
terrorism, and we need to work harder to find bipartisan 
solutions to these difficult problems.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Bellinger follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Goodlatte. Thank you, Mr. Bellinger.
    Mr. Chesney, welcome.

 TESTIMONY OF ROBERT CHESNEY, CHARLES I. FRANCIS PROFESSOR IN 
 LAW, ASSOCIATE DEAN FOR ACADEMIC AFFAIRS, UNIVERSITY OF TEXAS 
                         SCHOOL OF LAW

    Mr. Chesney. Thank you, Mr. Chairman. Thank you, 
distinguished Members of the Committee, for the opportunity to 
be here to testify today.
    Mr. Goodlatte. Pull it close.
    Mr. Chesney. Thank you.
    Let me come straight to the point. The Constitution does 
not require judicial process in the narrow circumstances at 
issue here today for the reasons Mr. Bellinger just stated and 
stated in the white paper. However, I believe that a limited 
and carefully calibrated judicial role would be permissible as 
a constitutional matter and desirable as a matter of policy. So 
how might this be the case?
    You need to bear in mind that there are two very distinct 
scenarios that arise when the Government uses lethal force in a 
targeted manner. The classic scenario that comes readily to 
mind for most of us when we talk about armed conflict is that 
of a soldier in the field who encounters a situation that 
requires an instant judgment as to whether someone is an enemy, 
whether a shot should be taken.
    Judicial involvement at that stage would, of course, be 
grossly impractical. It would be contrary to tradition. I think 
that is relatively common ground. But that is not the end of 
the story.
    We are speaking this morning exclusively of a situation in 
which the Government is intentionally targeting a specifically 
identified person. Unlike the classic armed conflict scenario I 
just described, the scenario actually at issue here is a two-
stage process with very different questions at issue and very 
different exigencies at different points in time.
    Now, for better or worse, there have been a flood of leaks 
that give us a fair sense of how this process actually unfolds 
currently. At stage one, the question is whether the available 
intelligence suffices to establish that the nominated 
individual is notionally within the scope of the Government's 
asserted targeting authority. If so, that opens the door to the 
possible use of force later on, should that person be located.
    Stage two arrives only later, if and when the target 
actually is located. Now at that point in time, sensitive 
questions do arise as to whether, for example, the person that 
is being observed is, in fact, that nominated target and then 
whether the circumstances would allow for a particular attack 
to be lawful and desirable. My point is that stage two is akin 
to the classic time-sensitive scenario I first described, but 
stage one is quite different.
    Indeed, it is no accident that based on the public 
reporting of what actually takes place within the Obama 
administration at stage one, it in many ways resembles a 
judicial process already. Dossiers of information are 
assembled. They are put before a group for debate and 
discussion. Multiple parties weigh in in debate what, if 
anything, the intelligence suffices to prove. And debates take 
place regarding the notional legal boundaries of the 
Government's targeting authority.
    The point is judicial involvement at stage one would be 
relatively much less intrusive, much less unconventional than 
it would be at stage two. And while I do not think it is 
possible to say that the Fifth Amendment due process clause 
clearly requires adoption of a system for review of these stage 
one issues, and while I rush to add that, of course, there is 
no current way to get that review--not unless and until 
Congress acts--I do think that the due process interests of the 
individuals involved, who, after all, may not actually be 
senior operational al-Qaeda leaders after all, it suffices to 
counterbalance the competing Article II concerns that a 
proposal for judicial review at stage one would otherwise raise 
or would raise.
    Now let me clarify precisely what it is I think a judge 
could properly be asked to do in this so-called stage one 
review. There are really two elements to this. One task would 
be to confirm or clarify the law with respect to notionally 
which U.S. persons could be targeted. This could result in 
affirmation of the white paper's position and the Attorney 
General's prior speech on this subject. Perhaps it would result 
in a narrower view or a broader view, but a judge could make 
that determination.
    Whatever the result of that substantive legal inquiry, the 
court's core task, of course, would be to determine whether the 
information that has been put forward to suggest that a 
particular American is within the scope of that authority 
actually is sufficient to that task. Now if the category is 
defined simply in terms of membership in the enemy force, which 
is effectively what goes on at the Guantanamo habeas 
proceedings currently, the court would be able to consider that 
question. It is the sort of question courts have been grappling 
with in the habeas process for the past 4 years.
    If, instead, the test is something along the lines of the 
white paper test, it would be more complicated. Certainly, the 
court at that stage could consider the person's organizational 
links, position in the organization.
    As to imminence, which, of course, is a central part of the 
white paper test, if you met a strict temporal definition of 
imminence, which is now what the white paper is talking about, 
that sounds like a stage two determination that can only be 
decided at a time exigent moment. But of course, the white 
paper describes a form of imminence that is probably better 
thought of as constant and continuing organizational commitment 
to attack. That could be assessed at stage one.
    Feasibility of capture, in contrast, is a stage two issue, 
not something that judges could appropriately intervene with or 
review at stage one.
    I am out of time. So I will close simply by quickly noting 
that there is an objection that comes from a different 
direction to this proposal, and that would be that the Article 
III jurisdiction of the courts could not extend to a situation 
like this, which would be an ex parte proceeding. It would be a 
significant issue. It is not obvious that the courts have the 
power to do this.
    However, I think that the analogy to the FISA system 
actually is a good one. I know that we will hear more about 
this in a moment from my colleague Professor Vladeck. Suffice 
to say that in the FISA context, there is very little actual 
prospect of adversarial testing of the FISA orders that are 
issued. In the end, it rarely happens, and when it does, it is 
always done on an ex parte basis anyways.
    Thanks for your patience, and I look forward to answering 
your questions.
    [The prepared statement of Mr. Chesney follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Goodlatte. Thank you, Mr. Chesney.
    Mr. Wittes, thank you very much.

         TESTIMONY OF BENJAMIN WITTES, SENIOR FELLOW, 
                   THE BROOKINGS INSTITUTION

    Mr. Wittes. Thank you, Mr. Chairman, Members of the 
Committee, for inviting me to testify on the question of when 
the United States may lawfully target alleged American 
terrorists overseas.
    I want to explain and defend the legal rationale underlying 
the Administration's lethal targeting of a U.S. citizen in the 
narrow circumstances of a person who is abroad and believed to 
be a senior operational leader of al-Qaeda or its associated 
forces. The ability to kill one of its own citizens is one of 
the most awesome and terrifying powers a people can vest in its 
government, and the power to do this without judicial check is 
certainly anomalous in a society that provides for judicial 
review of countless lesser exertions of government power.
    As Federal District Judge John D. Bates, who presided over 
the al-Awlaki case, wrote, ``How is it that judicial approval 
is required when the United States decides to target a U.S. 
citizen overseas for electronic surveillance, but that 
according to the Government, judicial scrutiny is prohibited 
when the United States decides to target a U.S. citizen 
overseas for death?''
    Yet there is something equally terrifying, I would suggest 
more terrifying, about a government unwilling, as a consequence 
of its own legal views, to protect its people from ongoing 
threats of attack from its citizens overseas. In dealing with 
major al-Qaeda figures overseas who hold American citizenship 
therefore, the Obama administration has, therefore, confronted 
a slippery slope with not one, but two distinct bottoms.
    Down one side lies a Government empowered to do terrible 
things without sufficient legal justification or oversight. 
Down the other side lies a Government powerless to confront 
very real threats to the safety and lives of its citizens while 
terrorist figures operate with impunity from sanctuaries in 
ungoverned spaces. It is not enough to avoid sliding down one 
of these slippery slopes. U.S. policy must avoid both.
    With that as background, let us consider for a moment the 
targeting powers that the Obama administration is not claiming 
with respect to Americans overseas who affiliate themselves 
with the enemy. It is not claiming the authority to target any 
such American citizen, only an American citizen who is a senior 
operational leader of al-Qaeda or one of its co-belligerent 
forces. It is not claiming the authority to target even such a 
senior operational terrorist if his capture is a feasible 
alternative.
    It is not claiming the authority to target an American 
citizen who poses no imminent threat to American lives, and it 
is not claiming the authority to act without compliance with 
the laws of war. Given this rather restrictive posture, it is 
not surprising there is only one reported case of U.S. forces 
actively targeting a specific American citizen with lethal 
force.
    The Administration's view of this matter has four 
subsidiary components, each of them, in my view, clearly 
correct. First, the United States is in a state of armed 
conflict with al-Qaeda, the Taliban, and its associated forces. 
Second, in this armed conflict--as, indeed, in any armed 
conflict--the United States is lawfully entitled to target the 
enemy with lethal force. Third, there exists no general 
immunity from targeting for U.S. citizens who sign up to wage 
war against their own country. And fourth, whatever the 
Constitution's due process guarantees may require before 
targeting a U.S. citizen, these requirements are more than 
satisfied by a rigorous judgment that a person like Anwar al-
Awlaki meets the Administration's narrow test for targeting.
    To understand why this position must be correct, consider a 
domestic hostage situation. In such a situation, even law 
enforcement will use targeted killings, and it will do so 
without judicial preapproval when the threat to the lives of 
the hostages is adequately serious. Nobody takes the position 
that such actions constitute unlawful extrajudicial killings. I 
submit that the case that truly meets the Administration's 
legal test, like Anwar al-Awlaki, is not profoundly different 
from this hostage situation.
    Now a mounting chorus of critics has insisted that judicial 
review must be a feature of the legal framework that authorizes 
the targeting of American nationals. Whatever the merits of 
proposals to create judicial review mechanisms, and this is an 
extremely difficult question, one point is very clear. Current 
law simply does not provide for prospective judicial 
involvement in targeting decisions.
    It is, therefore, hard to fault Attorney General Holder for 
having failed to bring the Anwar al-Awlaki case for prospective 
review before a court that does not exist.
    In summary, the Obama administration has taken a measured 
and serious position concerning the targeting of Americans 
overseas, one that reserves the right to target in the most 
extreme cases while leaving open the question of the minimum 
criteria for targeting to be lawful in less dire circumstances. 
It is a position that is neither radical, nor surprising, and 
it ought not raise concerns that the Administration is claiming 
undue presidential power.
    Thank you for this opportunity to share my views on this 
important subject. I look forward to your questions.
    [The prepared statement of Mr. Wittes follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Goodlatte. Thank you, Mr. Wittes.
    Mr. Vladeck, welcome.

 TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, ASSOCIATE 
DEAN FOR SCHOLARSHIP, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF 
                              LAW

    Mr. Vladeck. Thank you, Mr. Chairman, Members of the 
Committee. It is a pleasure to be back before you again.
    I want to start from where Mr. Wittes left off, which is 
that I do think, although we might disagree about the actual 
circumstances, we would all agree that there are some 
circumstances where the Government is allowed to use lethal 
force, even against its own citizens. That is not to say that 
this is a good thing. It is not to say that it is something we 
should be happy or proud about. But it is something, I think, 
that is an important starting point for this conversation.
    So, in that regard, the question really isn't whether the 
Government has the power to use this kind of force, it is when. 
And that is why I think so much of the statements you have 
heard already today, so much of the focus among commentators, 
has been on this judicial review question.
    Not as a sideshow, not because judicial review is somehow a 
proxy for the larger conversation, but because the real concern 
is, are these operations being carried out in a manner that 
actually passes legal scrutiny? Put another way, how can we be 
sure, given the pervasive secrecy that surrounds these 
operations, that the circumstances, the criteria, whatever the 
law that we believe to exist is, has actually been satisfied in 
an individual case?
    And indeed, in this regard, Mr. Chairman, the white paper 
is curiously silent. It suggests that ex ante judicial review 
would not be really workable for reasons that my friend and 
colleague Professor Chesney has alluded to. And I actually 
don't disagree that there are concerns that would arise from ex 
ante review.
    But what I would like to do in my remarks today and what I 
do in more detail in my written testimony is explain how 
Congress could, in fact, provide a far clearer, far less 
problematic remedy that would allow these issues, these 
questions to be resolved by judges by creating a cause of 
action for damages after the fact. Indeed, to my mind, the only 
answer to the hard questions raised by targeted killings are 
for Congress to allow courts to intervene, not beforehand, but 
afterwards, just as courts do when our law enforcement officers 
use lethal force in those exceptional circumstances where they 
feel compelled to do so.
    So let me briefly explain how this could work using the 
various examples that this Committee is well familiar with to 
illuminate. First, with regard to creating a cause of action, 
as this Committee knows, when Congress enacted the Foreign 
Intelligence Surveillance Act in 1978, one of the provisions it 
included was an express cause of action. Even for a secret 
surveillance program, even where most of these determinations 
are made behind closed doors and ex parte, Section 1810 of 
Title 50 provides a cause of action for damages. It provides 
even for attorneys fees, although I wouldn't get that excited 
at that point in the proposal.
    And so, we have this model in FISA for Congress providing 
retrospective damages even for presumably secret governmental 
operations.
    There would still be other potential procedural obstacles 
that would get in the way. So, for example, the state secrets 
privilege that the Obama administration has followed its 
predecessors in routinely invoking in these kinds of cases. But 
as this Committee knows, there have been various proposals 
floated in Congress in the last 4 or 5 years to curtail the 
state secrets privilege. For example, the State Secrets 
Protection Act that was proposed in 2009.
    Whether you follow the model of the State Secrets 
Protection Act or not, it certainly would be easy for Congress 
by statute to provide procedures pursuant to which these issues 
could be resolved while protecting governmental secrecy. One 
could model those procedures after the Classified Information 
Procedures Act, which this Congress passed to apply to criminal 
prosecutions involving classified information.
    One could also look, Mr. Chairman, to the Guantanamo habeas 
cases where the courts have actually fashioned an ad hoc form 
of the Classified Information Procedures Act to allow for those 
disputes to be resolved even with classified evidence. And the 
model for that is not to allow the individual litigants to 
always see the evidence, but to have security-cleared counsel 
who, so far as we know, have to date not disclosed a single 
item of classified information as part of the Guantanamo 
hearings.
    You also have questions about official or sovereign 
immunity. But Congress in 1988 in the Westfall Act provided a 
way around that for certain tort claims against the Federal 
Government, whereby the statute Congress immunizes Federal 
officers and substitutes the Federal Government as the 
defendant any time an operation that falls within the scope of 
the cause of the action is carried out within the scope of that 
officer's employment. This could certainly be followed here.
    Now this begs the harder question, what exactly would 
courts be reviewing on the merits? And I think, Mr. Chairman, 
we could have four or five hearings at the least to answer that 
question. Let me just start from the proposition, though, that 
this is a question courts are not completely incompetent at 
handling.
    In the context of law enforcement operations, courts 
routinely look backwards after a lethal use of force to decide 
whether the officer reasonably feared for his life or for the 
life of third persons. Courts routinely look at the 
circumstances through hindsight, even though there are concerns 
about hindsight bias.
    And so, I think if we could reach some consensus, Mr. 
Chairman, on how to actually resolve these claims on what the 
law should be going forward, it would not be that hard to 
empower courts with the benefit of hindsight to entertain these 
kinds of claims.
    Now in his concurrence in the famous decision in the Steel 
Seizure case, Justice Frankfurter suggested that the accretion 
of dangerous power does not come in a day. It does come, 
however, slowly from the generative force of unchecked 
disregard of the restrictions that fence in even the most 
disinterested assertion of authority.
    It seems to me, Mr. Chairman, that targeted killing 
operations by the executive branch present the legislature with 
two realistic choices. Congress could accept with minimal 
scrutiny or oversight the executive branch's claims that these 
operations are, in fact, carried out lawfully and with every 
relevant procedural safeguard to maximize their accuracy and, 
thereby, open the door to the unchecked disregard of which 
Justice Frankfurter warned.
    Or Congress could require the Government to defend these 
assertions in individual cases before a neutral magistrate 
invested with the independence guaranteed by the Constitution's 
salary and tenure protections. So long as the Government's 
interest in secrecy are adequately protected in such 
proceedings and so long as these operations really are 
consistent with the Constitution and laws of the United States, 
what does the Government have to hide?
    Now, in closing, Mr. Chairman, I just want to make one last 
point. As Mr. Wittes suggested, there has only been one 
reported case of an operation that specifically targeted a U.S. 
citizen. If the reports are to be believed, there are only 
three U.S. citizens who have, in fact, been killed in these 
operations.
    But if one listens to Senator Graham, who, given his role 
on the Intelligence Committee, would know, there are as many as 
4,700 casualties, 4,700 people who have been killed by American 
drone strikes. I am sure many of those strikes were legal. It 
is possible most of those strikes were legal. But I think it is 
important to keep in mind that as we talk about drones and 
accountability for the Government, we are not just talking 
about Anwar al-Awlaki.
    Thank you, Mr. Chairman. I look forward to your questions.
    [The prepared statement of Mr. Vladeck follows:]
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Goodlatte. Thank you, Mr. Vladeck.
    Thank you all for very good testimony. I will begin the 
questioning with you, Mr. Bellinger.
    The Administration's white paper tries to establish that 
where an American citizen who is a ``senior operational leader 
of an al-Qaeda--or an al-Qaeda leader or an associate force of 
al-Qaeda poses an imminent threat, the capture is--and capture 
is not feasible,'' the U.S. can target and kill him. According 
to the white paper, imminent threat and the feasibility of 
capture are not well defined.
    Do you see any problems with the lack of specifics in these 
definitions?
    Mr. Bellinger. Well, thanks, Mr. Chairman.
    Of course, the white paper is a summary, a 15-page summary 
of what apparently is a much longer legal opinion. And as you 
have explained, most Members of Congress have not seen the 
entire legal opinion.
    Having been both an executive branch lawyer and I have also 
been counsel to a Senate Committee, I understand the state of 
play. I do think the Administration, while perhaps not 
providing the very opinion that was provided to the President, 
needs to be as forthcoming as possible on these very issues 
about imminence. I agree with the point in the white paper that 
imminence cannot mean that a terrorist is about to push the 
button tomorrow, and that is the only time that you can target 
him.
    When we are dealing with terrorism, when we are dealing 
with nuclear weapons programs, there has to be a longer lead 
time. The Administration has tried to explain that, both in the 
white paper and in Attorney General Holder's speech, but that 
is a very controversial concept that I think has been troubling 
both to Americans and for me, as a former State Department 
official, has been extremely troubling to our allies.
    Well, at what point is the U.S. saying that they are going 
to target someone if this concept of imminence is really 
redefined to be a very, very broad concept? So----
    Mr. Goodlatte. Well, let me take it a step further. It is 
not just killing, but it is also other actions taken by the 
Government. And the Congress has already required that the 
military get court approval before targeting an American 
citizen for surveillance.
    Mr. Bellinger. Right.
    Mr. Goodlatte. Which has less consequences than killing 
them, even in a foreign country. So why shouldn't that 
requirement extend to a targeted killing?
    Mr. Bellinger. Well, you know, this is, in fact, one of the 
great ironies at the broad conceptual level. Why is it that to 
conduct electronic surveillance of an American, the executive 
branch has to go to a court, but to actually kill an American, 
they don't?
    The reason is about 30 years ago or so, Congress got 
concerned about electronic surveillance of Americans and said 
we want to set very specific parameters before the executive 
branch does that. Congress could do that in this case, and I 
think that is something this Committee ought to think about.
    Now, to a certain extent, I do believe, as you have heard 
from my colleagues, that this may be a solution in search of a 
problem. The United States is not out regularly killing 
Americans. That said----
    Mr. Goodlatte. No, but it is good for the Congress to check 
and make sure that they are not, too, right?
    Mr. Bellinger. That is right. And so, even if only one 
American has been killed, if Congress, on behalf of the 
American people, is concerned about the Government targeting 
people, I think Congress could reasonably pass a statute that 
says not to require judicial review--because I really think 
that is too difficult, particularly in a war, in an armed 
conflict--but to specify the circumstances that the executive 
branch has to satisfy before they target an American and then 
to require some notice in reporting back to Congress. That is 
the check and balance.
    Mr. Goodlatte. Since my time is limited, let me go on to 
Mr. Chesney and Mr. Wittes. First of all, Mr. Chesney, does the 
white paper provide enough information about why the 
Administration believes it has authority to kill U.S. citizens 
abroad?
    Again, I am not talking about Anwar al-Awlaki. I think the 
evidence is pretty solid he is a bad guy, and he got the end he 
deserved. I would note for Mr. Wittes' analogy to hostage 
taking, that you have collateral damage that you have got to 
pay attention to there. And in this case, his 16-year-old son, 
also a United States citizen and not a senior operational 
leader of al-Qaeda, was killed in the same attack.
    So I would like you to tell how we can refine making that 
distinction and protect the rights of law-abiding U.S. 
citizens. I am not saying his son is or is not. But I think 
that is a legitimate question when we know that he also faced 
the same demise.
    So, Mr. Chesney?
    Mr. Chesney. Mr. Chairman, as Mr. Bellinger said, it is 
quite possible that in some of the documents that the Committee 
has not yet been able to see and that certainly we haven't 
seen, that there is a much more expansive explanation as to the 
foundations of affirmative authority to target that the 
Administration is claiming. That said, there is a fair amount 
of detail even in the white paper. The core claim, of course, 
is the 2001 Authorization for Use of Military Force is 
pertinent here. Al-Qaeda membership is woven into the 
conditions that are specified both in Attorney General Holder's 
speech and in the white paper.
    The more interesting question, though, of course, is what 
about threats that are of similar magnitude, similar threats to 
American lives that don't necessarily arise with an al-Qaeda 
nexus? As Mr. Bellinger pointed out in his opening remarks, a 
dozen years removed from the 2001 AUMF, the nature of the 
threat environment the United States faces has evolved 
considerably, and it is increasingly the case that it is not 
enough simply to say, well, the threat is al-Qaeda or to 
gesture in the direction of associated forces. At a certain 
point, we have to ask whether there's a need for a clearer 
statement from Congress as to what range of situations the 
Administration ought to be in bringing to bear the armed 
conflict model.
    Now that said, the white paper is also careful to identify 
a distinct head of authority, and that is Article II authority, 
indeed, the duty of the President to defend the Nation when 
faced with threats to American lives.
    Mr. Goodlatte. Right. Let me interrupt you because I do--my 
time has expired, and I do want to get Mr. Wittes with an 
opportunity to respond to the same question.
    Mr. Wittes. So I just want to respond briefly to your point 
about the hostage situation. Number one, you know, collateral 
death is a distinct possibility in a hostage situation, and it 
is one of the background principles I think that makes the 
analogy so precise is the possibility that you may actually 
accidentally kill some of the hostages.
    Number two, I think the collateral deaths of U.S.----
    Mr. Goodlatte. Right. But that is also a case where the 
imminence of the danger to those hostages is very, very real.
    Mr. Wittes. Correct. I mean, you have the possibility of 
imminent danger to the hostages----
    Mr. Goodlatte. You don't necessarily have that with 
somebody driving around Yemen in an automobile or however this 
particular drone attack was taking place.
    Mr. Wittes. Right. But you do have the possibility of 
imminent death to people on the airplanes that he is allegedly 
putting Umar Farouk Abdulmutallab on.
    Mr. Goodlatte. Look, I am not defending Mr. al-Awlaki in 
any way, shape, or form. I want to know what we can do to 
protect U.S. citizens from having that occur.
    Mr. Wittes. Right.
    Mr. Goodlatte. Mr. Vladeck? Go ahead. Go ahead.
    Mr. Wittes. Can I just respond to that? I mean, I think the 
answer to that has to be rigorous procedures. Now whether those 
rigorous procedures are--you want rigorous procedures both on 
the side of making sure the target is the person who you think 
he is and making sure that you, in fact, have identified 
rigorously the person who, in fact, is a lawful target.
    And you also want rigorous procedures that will in a 
fashion consistent with the laws of war minimize collateral 
damage----
    Mr. Goodlatte. Okay. I am going to interrupt because I want 
him to say a few words, and then I want to turn to my 
colleague. And I have exceeded my time.
    Mr. Vladeck. Mr. Chairman, very briefly, the only thing I 
would add to what has already been said by my colleagues is I 
think it is very important, especially for the purposes of this 
conversation, to keep in mind that we are dealing with 
different scenarios and different categories of cases. And so, 
the answer to your question I believe is going to change 
depending on whether the justification for the strike is 
classic self-defense, where there is, in fact, a clear imminent 
threat to U.S. persons or U.S. interests.
    Mr. Goodlatte. Hostage situation.
    Mr. Vladeck. Hostage situation. Or a targeted killing 
operation that takes place not as part of self-defense, but as 
part of the broader non-international armed conflict between 
the United States and al-Qaeda in those parts of the world 
where there are active combat operations.
    And respectfully, sir, I do believe we are going to have 
very different answers to your questions based on which 
category we are talking about.
    Mr. Goodlatte. Sure. The Chair now recognizes the Ranking 
Member of the Constitution Subcommittee and the gentleman from 
New York, Mr. Nadler, for 5 minutes.
    Mr. Nadler. I thank the Chairman.
    My first question I must give credit to David Cole and the 
March 4th issue of the Nation. I am just going to read the 
question he posed.
    Imagine that Russian President Vladimir Putin had used 
remote controlled drones armed with missiles to kill thousands 
of ``enemies'' throughout Asia and Eastern Europe. Imagine 
further that Putin refused to acknowledge any of the killings 
and simply asserted in general terms that he had the right to 
kill anyone he secretly determined was a leader of the Chechen 
rebels or associated forces, even if they posed no immediate 
threat of attack on Russia.
    How would the State Department treat such a practice in its 
annual reports on human rights compliance? Anyone? Maybe we can 
start with Mr. Bellinger?
    Mr. Bellinger. Thank you, Mr. Nadler.
    In fact, as I alluded to in my opening remarks and at 
greater length went into my written remarks, I mean, this is a 
real problem. It could happen this year where the poor State 
Department spokesman is going to have to stand up after Russia 
or China has used a drone against a dissident in the next 
country, and the State Department will have to explain why that 
was a bad drone strike in comparison to the United States that, 
of course, only conducts good and lawful drone strikes.
    And so, that is extremely important for our Government, 
both Congress, but primarily the executive branch, to lay down 
as precisely clear rules for the use of drones----
    Mr. Nadler. That is fine, but isn't it the case that if 
Russia or China or someone were doing what Mr. Cole posits, 
that we would condemn that out of hand? That we wouldn't say, 
well, you know, this drone strike was okay and that one wasn't? 
That we would say----
    Mr. Bellinger. If Russia or China were being attacked by a 
terrorist group that was indisputably posing imminent----
    Mr. Nadler. Well, the Chechens attacked them at one point.
    Mr. Bellinger. And if Chechens were in another country 
posing imminent threats to Russia, and the country that they 
were in was unwilling or unable to prevent that threat, I think 
we would have to acknowledge Russia's right to defend itself.
    Mr. Nadler. Okay. Let me continue. First of all, one 
comment on something Mr. Bellinger said. He said we need due 
process, but not judicial process. I don't understand, and I am 
not asking a question, I am just saying. I don't understand how 
a unilateral determination by an executive branch official 
without any judicial involvement can be considered due process 
in any form.
    Let me ask Mr. Wittes the following question. You said and 
the white paper says that we can attack a senior operational 
terrorist posing an imminent threat consistent with the laws of 
war. My question is the following.
    I don't understand why we need a senior operational 
terrorist, why he can't be just an ordinary terrorist. I don't 
understand why he has to be posing an imminent threat. I think 
the analysis is completely different.
    Either this person is an enemy combatant, or he is not. If 
he is not an enemy combatant, he is subject to normal criminal 
law, and we ought to have normal due process and take him to 
court and so forth. If he is an enemy combatant, he doesn't 
need due process.
    The question is how do you determine whether he is an enemy 
combatant, and who determines whether he is an enemy combatant? 
Whether he is senior or not, I don't care, frankly, from this 
point of view. But under the laws of war, if he is an enemy 
combatant, he is a legitimate target.
    But who can determine that under what standards, and what 
precedents do we have, and on what grounds, and how can the 
executive determine that without any kind of other 
determination? Let me ask Mr. Wittes and Mr. Vladeck.
    Mr. Wittes. Well, I would just say, as a matter of law, you 
have just taken a position that is far more permissive with 
respect to targeting than the Obama administration's position.
    Mr. Nadler. No, because I have said it has got to be--you 
have got to determine properly he is an enemy combatant.
    Mr. Wittes. I understand. You have raised--you have 
suggested a narrower process to determine a broader category, 
right? The Obama administration has taken the view that it 
generally will not specifically or that it does not assert 
generally the right to target any U.S. national overseas who 
may fit in a law of war category of belligerency. It will 
target people only when they are an imminent threat and a 
senior operational leader whose capture is unfeasible.
    So you are taking a view that is potentially much more 
permissive and inclusive of more possible targets, but with a 
concern about the lack of process on the judicial side. I would 
just say--I mean, I think it is a very legitimate question what 
processes this body wants to impose for making those 
determinations.
    My only point is that there is nothing particularly extreme 
about the substantive position, there is nothing extreme at all 
about the substantive position the Administration has taken 
about whom it may target. And under current law, which is the 
law under which it confronted the Anwar al-Awlaki case, which 
is really the case that gave rise to these memos in the first 
place, there is no basis for judicial process at all. There is 
no forum in which to take these questions.
    Mr. Vladeck. Congressman, all I would say is I share your 
concerns about the view that due process is not a requirement 
of judicial process. I was surprised to hear the Attorney 
General say that last year in his speech at Northwestern.
    The only thing I think that it is worth bearing in mind is 
due process is not necessarily a requirement of pre-deprivation 
judicial process.
    Mr. Nadler. Of what?
    Mr. Vladeck. Of pre-deprivation, right? In other words, 
there are circumstances where the Supreme Court has said the 
Government is allowed to act, and then we will review after the 
fact whether they acted with sufficient procedural safeguards.
    And so, I share your view. I think the point is that that 
is not necessarily--the cash-out of your view is not that there 
should be pre-deprivation judicial process, but rather that 
there is a requirement that, at some point, some neutral 
magistrate is reviewing whether the Government's decision was 
made with adequate safeguards.
    Mr. Nadler. Could I just ask Mr. Vladeck to comment on the 
question that I posed? Under laws generally, if someone is not 
an enemy combatant, you cannot target him in any way without 
due process and a determination. If he is an enemy combatant, 
well, there are consequences that flow from that.
    How do we determine? I mean, if someone is wearing a 
uniform at Normandy in 1944, it is pretty safe to assume he is 
an enemy combatant, but--the wrong uniform, that is. But in the 
absence of that, how do we determine and under what safeguards 
should we determine who is an enemy combatant or not?
    Mr. Vladeck. So all I will say briefly, if I may, is that 
Article 5 of the third Geneva Convention creates a requirement 
that when there is doubt about the status of a belligerent, 
there is supposed to be a hearing. It doesn't have to be a 
judicial hearing. It could be an administrative hearing.
    But there is some requirement that at some point--it 
doesn't have to be before you capture them. It does not have to 
be before you act. But that at some point, as soon as is 
reasonably possible, you are ensuring that, in fact, the 
procedural safeguards that you have implemented have produced 
the right person. And that is what led to the Supreme Court's 
Hamdi decision in 2004, saying that, indeed, we need more due 
process, especially where U.S. citizens are concerned.
    Mr. Goodlatte. The gentleman's time has expired.
    Mr. Nadler. Thank you.
    Mr. Goodlatte. I thank the gentleman from New York and the 
witnesses.
    I recognize myself for 5 minutes, and I would make the 
point this. As I listened to the testimony here and we have 
gone into this decision-making process, I go back and reflect 
on the Constitution and the commander-in-chief. And even though 
there is a little political tension over this issue, I don't 
want to disempower our commander-in-chief from protecting our 
Americans, wherever we might be. And neither do I want to delay 
his decision to act.
    And so, we are confronted with this question if we are 
going to review the decision, either we give carte blanche 
authority to the President of the United States as commander-
in-chief to kill an American citizen abroad under the 
definitions that come out of the executive branch, or we define 
those conditions here by this Congress. And then we ask for a 
review. Prospective concerns me too much because that delays 
the response. Retrospective then goes either to Congress, or it 
goes to the judicial branch of Government.
    So which--that is the question that is before us, the 
definitions. And I will say for me, it has got to be a 
retrospective, not prospective, and I would prefer that we 
review it here in Congress by some form rather than handing 
over warfighting to the judicial branch. That has always 
concerned me.
    On the other hand, the politicization of it here in this 
Congress, that is the balance. So there is the question that is 
before me, and I would just ask each of the witnesses to just 
go down the line and weigh judicial or congressional review. 
The definitions I don't think we want to try to address today 
precisely. But what would be your preference, Mr. Vladeck?
    Mr. Vladeck. Both. I mean, I don't know why you couldn't 
have both processes operating side by side, where individual 
victims of strikes that they believe are unlawful have recourse 
to the courts and where this body has its normal oversight 
function. I don't know why they need to be mutually exclusive 
at all.
    I think they serve different purposes, and I think they 
vindicate different interests. So I am not sure why it has to 
be either/or.
    Mr. Goodlatte. And then with regard to security?
    Mr. Vladeck. Well, you know, I think the Guantanamo habeas 
cases are a very good example for all of us. These are cases 
where the Government's arguments all along were concerns about 
classified information being disclosed to the public, to the 
media, et cetera. And even though there have been some five or 
six dozen habeas cases since the Supreme Court's 2008 
Boumediene decision, I am unfamiliar with any single instance 
where any item of classified information was disclosed through 
those proceedings inappropriately.
    Mr. Goodlatte. I would agree with that, Mr. Vladeck.
    Mr. Wittes?
    Mr. Wittes. So I am sort of instinctively opposed to 
prospective judicial review of these questions. I do think the 
Congress, in the form of the Intelligence Committee and Senator 
Feinstein, has issued a fairly substantial statement about what 
the Senate Intelligence Committee at least has done in the way 
of reviewing these strikes, which seems fairly substantial. So 
I do think some of that is already going on.
    In addition, I have to say I find Professor Vladeck's 
written statement on the attractiveness of post hoc review 
judicially to be a very intriguing document. And I think that 
has a lot to recommend it, and I commend it to the Committee.
    And I also think that Professor Chesney, who has in his 
written statement attempted to narrow the categories of 
prospective review, which, as I say, I sort of viscerally 
oppose, but narrow it down to its finest levels where it would 
be least intrusive is a model that has a lot to recommend it as 
well.
    So I mean, I think there is--I largely agree with Professor 
Vladeck that there is opportunities in both spheres.
    Mr. Goodlatte. But would it be your opinion that 
prospective review would delay an operation perhaps?
    Mr. Wittes. I fear very much that it could. I also fear 
that the temptation on the part of the executive branch would 
be to throw lots of things to whatever judicial tribunal that 
was created in order to get cover for things, and you would end 
up with a very substantial and unanticipated dialogue between 
whatever tribunal you created and the executive in much, 
actually, the way that FISA has done in many ways attractively 
in that context. I think in the targeting context, it would be 
less attractive.
    Mr. Goodlatte. Mr. Chesney?
    Mr. Chesney. I certainly agree that congressional oversight 
should be granular and serious. There should be as much 
transparency as possible there. I think that is critical, and I 
think that is common ground for almost everybody here.
    I think the hard question is the role, if any, for the 
judiciary. As Mr. Wittes just said, I endeavor in my remarks to 
show that I do come down in the remarks in favor of 
prospective, rather than post hoc. But I do so only with 
respect to a very narrow set of issues, issues that I don't 
think should be reviewed by the judiciary post hoc or after the 
fact include the issues that are most time sensitive.
    Decisions whether the particular person who is in your 
sights for this fleeting moment is, in fact, who you think it 
is, whether capture is feasible. Those sorts of features I 
don't think are fit subjects for judicial review.
    What I do think could be properly reviewed by the 
judiciary, and I think in advance in order to give the 
executive branch certainty is better, would include mainly the 
alleged membership of the individual in the organization in 
question and their role within the organization. And I say this 
only on the assumption that we are in a situation where it is 
not exigent to determine that right now. There has to be an 
exigent opt-out.
    Mr. Goodlatte. Thank you.
    And Mr. Bellinger?
    Mr. Bellinger. I think I come out where you seemed to be 
coming out in the beginning of your comments. I mean, first, I 
think you really have to decide is this a problem that is 
coming up so frequently that Congress needs to intervene? We 
have only had one example.
    That said, it is a very serious example. So if we get over 
that hurdle, I think Congress could quite reasonably legislate, 
one, the criteria of who should be targeted. And much of it is 
in the white paper, but you might put in even more specific 
criteria. And then the procedures that would be required for 
targeting inside the executive branch.
    I would not require either prospective or a retrospective 
judicial review. I think the check and balance in our 
constitutional system is for reporting to Congress, if possible 
beforehand in a classified setting.
    There appeared to have been a very long lead time with the 
targeting of Mr. al-Awlaki. The executive branch could have 
gone and told the Intelligence Committees we are targeting this 
person. If Congress says, ``We completely disagree. We think 
this guy is just exercising his First Amendment right,'' the 
executive should take that into account.
    Certainly after the fact, if the executive branch has 
targeted Americans, I see no reason why the executive can't 
come and report that to Congress. And again, if Congress after 
the fact says, ``This is not the authority that we gave to you, 
we have got real concerns about it,'' that, to me, is the check 
and balance.
    Last point. Remember, as you said, we are talking about an 
armed conflict situation. And so, tying the President's hands 
one way or another before or after with judicial review in an 
armed conflict decision as commander-in-chief I think is a very 
serious problem. I would not do that.
    Mr. Goodlatte. Thank you, Mr. Bellinger. And your point, 
prospective, if possible, and retrospective, if necessary, I 
see as an alternative.
    I thank the witnesses, and I see that my time has expired.
    And I would yield to the true gentlemen from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Vladeck, the determination has to be made that the 
target is a senior operational leader of al-Qaeda, imminent 
threat, capture not feasible, consistent with the laws of war, 
but did I miss it in the white paper where they talk about the 
standard that is used, whether it is beyond a reasonable doubt 
or moral certainty or preponderance of the evidence?
    Or there is a standard not clearly erroneous. Where is the 
standard?
    Mr. Vladeck. If you missed it, Congressman, I missed it as 
well. I mean, I don't think the white paper goes out of its way 
to say what the particular burden is, partially I think because 
the white paper disfavors judicial review, which is where that 
burden would presumably come into play.
    Mr. Scott. What evidence can be--are there any rules of 
evidence as to what evidence can be considered?
    Mr. Vladeck. There are no--certainly, there are no 
legislatively imposed rules of evidence that apply to these 
cases.
    Mr. Scott. Can hearsay be considered to ascertain whether 
or not these factors are true?
    Mr. Vladeck. All I will say is there may well be internal 
and classified executive branch rules that deal with this. 
Certainly, we don't know about any of them.
    Mr. Scott. Well, we are talking about the rules that we are 
going to by. The internal stuff can change every day. Is there 
any prohibition against hearsay being considered?
    Mr. Vladeck. No.
    Mr. Scott. Why is hearsay not considered admissible in a 
court of law?
    Mr. Vladeck. I mean, I think the short answer is it is 
generally believed to be inherently unreliable.
    Mr. Scott. And that can be considered to put someone to 
death, best you can determine from the white paper?
    Mr. Vladeck. Certainly, there is nothing in the white paper 
that suggested it couldn't be.
    Mr. Scott. Now judicial review, we have had situations 
where you get the hostage situation, imminent, ongoing 
situation. Is there any problem with a prospective judicial 
review, if feasible, as there is in FISA and post hoc, if it's 
not feasible beforehand?
    Mr. Vladeck. So I think, Congressman, there are two 
problems, one legal, one practical. Because I do think--I mean, 
I do think you could solve the concerns that Congressman King 
raised through an emergency exception.
    But I think the legal concern is there is an Article III 
question about whether there is adversity in the judicial 
proceeding. The reason why this isn't usually an issue with 
regard FISA warrants, like search warrants in criminal cases, 
as I elaborated in my written testimony, is because those are 
seen as ancillary to the subsequent criminal proceedings.
    In this context, without any subsequent proceeding, I think 
you would have a very serious problem if the Government had 
this ex parte application to a judge with no one representing 
the other side either at that point or afterwards.
    Practically, Congressman, my concern is, you know, ex ante 
judicial review could very well turn into death warrants where 
basically judges feel enormous pressure in these circumstances 
to sort of defer to the Government, especially without adverse 
counsel, adverse parties, adverse presentation. Whereas, in the 
context of retrospective review, judges have the hindsight. 
Judges can actually see what happened.
    So I think there is both legal and practical problems that 
would arise with ex ante review, separate from the emergency 
situation, which I think you could provide for by statute.
    Mr. Scott. Well, how long are people on the list?
    Mr. Vladeck. We don't know. I mean, certainly, as I think 
the last exchange suggested, it appears to be the case that Mr. 
al-Awlaki was targeted and on the list where he could have been 
targeted for some extended period of time.
    Mr. Scott. So if you are on the list for some extended 
period of time, at some point during that time, someone could 
have wandered over to an independent review?
    Mr. Vladeck. Well, as you know, Congressman, Mr. al-
Awlaki's family did. I mean, there was a lawsuit brought on 
behalf of Mr. al-Awlaki in the D.C. Federal District Court 
before the operation that ended up terminating his life. That 
suit was dismissed by I believe it was Judge Bates on a series 
of procedural grounds that it wasn't justiciable, that the 
political question doctrine got in the way, et cetera.
    So there was, indeed, an attempt to do exactly that.
    Mr. Scott. Well, what recourse is there for someone who is 
on the list by mistake?
    Mr. Vladeck. At least in al-Awlaki's case, the Government--
I don't know how seriously to take this, but the Government 
certainly suggested that if he wanted to turn himself in, they 
would be obliging. So at least when it is public that the 
Government believes it has the authority to kill a particular 
person, presumably they could seek to turn themselves in and 
then contest it. But there is no procedure for that.
    Mr. Scott. Is drone killing the only method for killing?
    Mr. Vladeck. No. I mean, I think it is important to keep in 
mind that this conversation is not actually about drones as 
such. That it is about uses of any number of sources of 
military hardware to conduct targeted killings, whether through 
an unmanned aerial vehicle, a manned bomber, a Tomahawk missile 
fired from a Navy ship in the middle of, you know, a body----
    Mr. Scott. Handgun?
    Mr. Vladeck. Sure. So, no, it is not about drones, per se, 
although I think the technological utility of drones makes it 
easier and cheaper for the Government to conduct these 
operations than conventional pre-existing technologies might.
    Mr. Scott. Is there any rationale for allowing--is there 
any rationale for killing them overseas? What if they are found 
in the United States, what happens?
    Mr. Vladeck. Well, at least according to the white paper, 
one of the critical considerations is the feasibility, or lack 
thereof, of capture. I have to think that the Federal 
Government will never take the position that it is infeasible 
to capture an individual who is within the territorial United 
States.
    But I still think they could probably--if I back up a 
second, I think the Government could claim the authority in 
exceptional circumstances to use lethal force against a U.S. 
citizen in the U.S. Law enforcement officers do it all the 
time. So I think with regard to the white paper, that 
circumstance won't arise because you will never satisfy the 
infeasibility of capture prong. But that doesn't mean that the 
Government wouldn't claim such force in another context.
    Mr. Goodlatte. The gentleman's time has expired.
    And the Chair will now recognize the gentleman from 
Arizona, Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman.
    Thank you, gentlemen, for being here.
    I was struck by the Chairman of the Committee's 
juxtaposition between surveillance and the drone strikes, and I 
will have to go ahead and begin my comments by suggesting that 
as we look back not such a long time ago when the 
Administration eviscerated the Bush administration for 
waterboarding certain individuals under circumstances that 
perhaps were at least as compelling as some of those we are 
discussing today. And yet the drone strikes are something that 
they can move forward to.
    And it just seems to me that there is more than a subtle 
difference between waterboarding and blowing someone into 
eternity. And the hypocrisy of the Administration is profound, 
in my opinion, on this front.
    With that said, as I have come to expect and anticipate a 
certain cognitive dissonance and a certain unwillingness for 
this Administration to hold themselves constrained to the 
truth, their previous statements, their previous positions. So 
my thought today is for those of us that are committed to 
protecting the Constitution and protecting the constitutional 
way of life for Americans, that we have to then focus very 
narrowly on this phrase ``due process,'' and that that has to 
be our definitional task.
    Certainly, there are none of us, I believe, on this 
Committee that would say that we just need to do away with due 
process when we are talking about an American citizen. However, 
as the other gentleman mentioned earlier, with police officers 
and things of that nature, we have due process in this country. 
But if there is an imminent threat, and sometimes the degree of 
the imminence is taken into consideration, then the due process 
exists because of that conditionality.
    So what I would like to do, if I could start with you, Mr. 
Bellinger, just simply see if we can find some consensus among 
the panel as to what critical elements should be in any 
congressional outline of due process here and whether there 
should be some significant punitive measures built into that 
kind of guideline to keep an Administration within the track of 
what befits our constitutional premise.
    So, Mr. Bellinger?
    Mr. Bellinger. Well, thank you, sir.
    And I can't resist, as someone who spent all 8 years in the 
Bush administration sometimes receiving the criticisms and 
slings and arrows from people on the outside, to address your 
point about hypocrisy.
    I have been supportive of the Obama administration's 
counterterrorism policies, including of the drone strikes. I 
would like to have seen some of them, now that they are in 
office, acknowledge that maybe some of these issues that they 
claimed we were making huge mistakes on before are actually 
more difficult than they acknowledge. And we see little of that 
acknowledgment.
    Frankly, one of the reasons I am here today, as a 
Republican official, is to give the same kind of bipartisan 
support to this Administration that I would have liked to have 
seen some of them when we were in office giving to us on these 
difficult counterterrorism issues.
    That said, with respect to due process, the question of due 
process, I think, does not mean judicial process. It can mean 
judicial process in some circumstances. But the Constitution 
never said judicial process. It says you can't be deprived of 
life or liberty without due process.
    So what is the process that is due in a particular 
situation? In a situation where we have an armed conflict, 
i.e., a war, the process I think this Congress can 
appropriately say is to say that an American can only be killed 
who fits certain criteria. That it has to be a senior al-Qaeda 
leader who is planning attacks and that those are imminent 
attacks, and the executive branch has to have reviewed this and 
reached high confidence that the person reaches those criteria 
and, where possible, has notified Congress in advance, if that 
is possible, and certainly afterwards to have notified Congress 
after the fact.
    So I think I would guess that at minimum, the panelists 
here would say we could at minimum agree on those criteria if 
Congress were going to legislate. And then the only add-on is, 
is there some judicial role or not?
    Mr. Franks. Well, thank you, sir, and I appreciate your 
answers across the board.
    Mr. Vladeck, could I ask you to take a shot at it?
    Mr. Vladeck. Sure. I mean, I think--so I think we have to 
be careful, and perhaps I wasn't sufficiently clear in my 
responses to Congressman Nadler, that it is not that due 
process is by itself a requirement of judicial process. It is 
that the way to ensure that the Government has provided the 
process that is due is not simply to take the Government's word 
for it, but is to provide some modicum of review, independent 
external review that whatever process was due under those 
circumstances was, in fact, provided and it was not just 
asserted that it was provided.
    So, to that end, Congressman, I think this court can look 
to the jurisprudence that the Supreme Court has articulated in 
these cases--the Hamdi case, for example--with regard to what 
kind of due process is due an American citizen, even one who 
takes up arms against the United States, in Hamdi's case as 
part of the Taliban.
    I think there is a lot that we could learn from that 
example with regard to the balance that we should strike in 
those circumstances, and I think that if this Committee is 
serious about codifying those standards, there is plenty of 
precedent to base that on.
    Mr. Franks. And would you suggest that there might be any 
punitive elements in those guidelines for a Government that 
fails to follow them? Not just in case--a prosecutor, sometimes 
his case collapses if he doesn't do Miranda rights, but 
shouldn't there be something more punitive than that in a case 
that has such profound constitutional foundations?
    Mr. Vladeck. Well, Congressman, in my testimony, I suggest 
that you can provide a damages regime. Certainly, there would 
come a point where a Government officer might even be breaking 
various criminal laws if they are acting with gross negligence 
and intending to cause harm or they don't have the authority to 
use such force.
    My view is that it would be a sufficiently significant step 
in this context to even provide and create civil remedies. 
That, by itself, would, I think, have an incredibly salutary 
effect on the Government's practice.
    Going further than that I think would run into the question 
of who would prosecute that case? Would the Government really 
be interested in prosecuting its own officers and its own 
solders for crossing the line in that case?
    Mr. Franks. I mean, we do that all the time.
    Mr. Vladeck. Well, certainly, it is true in the military 
context. So the Uniform Code of Military Justice does provide 
for court martialing of our service members when they cross 
those lines. I think civil remedies might be sufficient for 
senior Government officers.
    Mr. Franks. Thank you.
    Thank you, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman for his good line of 
questioning.
    And the Chair now recognizes the gentleman from Puerto 
Rico, Mr. Pierluisi, for 5 minutes.
    Mr. Pierluisi. Thank you, Chairman.
    I thank the witnesses. I have a couple of questions based 
on your prior testimony and written submissions.
    I have noticed that some of you, if not all, have asserted 
that the Obama administration is actually taking a very limited 
targeting authority with respect to American citizens. My first 
question for each of you then is do you believe that the Obama 
administration, consistent with Article II of the Constitution, 
could have asserted a broader or far broader targeting 
authority?
    If the answer is yes, in what respects? Basically, I am 
interested in understanding whether you believe the 
Administration has gone to the outer limits of its Article II 
powers, and if not, in what specific ways it has not.
    Mr. Bellinger. Do you want----
    Mr. Pierluisi. Yes, each of you to comment on this.
    Mr. Bellinger. I think it is an excellent question. I think 
the Administration probably has not gone to the outer bounds of 
what its constitutional powers would be. Of course, none of us 
know really what those bounds are. There is just not a clear 
answer to this question.
    The Administration, I think, has taken a very restrictive 
standard. The exchange with Mr. Nadler actually gave a 
particular example. Instead of saying that the only Americans 
that could be targeted would be those who are senior 
operational al-Qaeda leaders who pose an imminent threat, the 
Administration could, I think, have said under the Constitution 
that any American who has taken up arms against the United 
States as part of an armed conflict could be targeted.
    If this were a traditional war, in World War II, and there 
were a German American, we would never have said that the only 
German American who had taken up arms would be a person who was 
a senior leader who posed an imminent threat at the time. So I 
think certainly the President would have broader authority, and 
to the Administration's credit, they understand that this is a 
serious power they are asserting to kill an American, and they 
have taken in this case a fairly limited reading.
    Mr. Chesney. Sir, I agree with that as well. I would add 
that it is noticeable that the Administration's formulation in 
the white paper and in the Attorney General's speech is al-
Qaeda specific. It doesn't have to be if we are talking about 
the duties and authorities of the President to defend the 
Nation in a true case of imminent threat. If that threat came 
from some other extremist group or individual that happened not 
to have a nexus with al-Qaeda, that power would still be there.
    Mr. Wittes. I would just add to that. You framed your 
question in terms of Article II, but the Administration could 
actually take a much more robust position under the AUMF 
itself. And the position would be suggested by the line of 
questioning that Congressman Nadler asked before.
    The D.C. Circuit has said in the habeas context that it is 
enough to justify targeting--to justify detention to be part of 
or substantially supporting enemy forces. Now just focus on the 
``part of'' component of that. You know, to follow your line of 
questioning, the Administration could take the view that an 
American who is part of enemy forces is is lawfully targetable 
under the laws of war and under the AUMF. It does not take that 
position.
    It hasn't forsworn that position, to be clear. It said, 
what it has said is it has addressed a single very specific 
case, which is the case of Anwar al-Awlaki, who it found to be 
a senior al-Qaeda operational leader whose capture was not 
plausible, who posed an imminent threat and whose targeting 
would be lawful under the laws of war. And it asked a 
comprehensive question, which is, is it is lawful to target 
this guy?
    And they limited their answer to that question, I think 
rightly and admirably, by the way. They limited their answer to 
that question so as not to take on bigger questions and more 
difficult questions than they needed to in that moment. They 
limited their answer to that question to those three, which are 
really four, circumstances.
    That leaves a lot of ancillary questions, like what about 
the nonoperational senior leader who poses an imminent threat? 
What about the operational senior leader who doesn't pose an 
imminent threat? What about the U.S. citizen foot soldier? All 
of those questions are left open by that, and there is no claim 
of authority to target such people.
    Mr. Nadler. Would the gentleman yield?
    Mr. Pierluisi. Yes.
    Mr. Goodlatte. Without objection, the gentleman is 
recognized for an additional minute so he can yield to the 
gentleman from New York.
    Mr. Nadler. I thank the gentleman. I thank the Chairman.
    I just want to clarify, since my comments have been quoted 
a number of times, that I was not suggesting that we ought to 
or that the Administration ought to broaden its targeting 
criteria. I was simply suggesting that none of this makes any 
sense until you have determined that someone is an enemy 
combatant. That seems to me that that is the first question 
that must be determined with some sort of due process or 
neutral process.
    Mr. Wittes. Look, if I may, there are two baskets of 
questions here. One is the substantive criteria for targeting, 
and one is the procedural dimensions of how you determine 
whether somebody is in that substantive criteria or outside it. 
When you and I had the exchange earlier, you described a very 
broad criteria for targeting and suggested that your anxiety 
about U.S. targeting practices vis-?-vis citizens was on the 
procedural side whether people were or were not in that narrow 
basket--in that basket.
    My argument is that what the Administration has done is 
actually exactly the opposite of that, which is it has defined 
a very narrow substantive basket, and it has no known 
procedural or at least no public procedural----
    Mr. Nadler. My point was that however narrow or broad the 
basket, and I am not suggesting broadening it, you have to 
answer that question first--Are you an enemy combatant?--and 
have the procedural due process.
    Mr. Goodlatte. The time of the gentleman has----
    Mr. Wittes. I think all of the members of the panel would 
agree with you about that.
    Mr. Nadler. I thank the Chairman.
    Mr. Pierluisi. Mr. Chairman?
    Mr. Goodlatte. I thank the gentleman for that 
clarification.
    The gentleman from Puerto Rico?
    Mr. Pierluisi. May I have just 30 seconds just to confirm 
one fact?
    Mr. Goodlatte. Without objection, the gentleman is 
recognized for 30 seconds.
    Mr. Pierluisi. Thank you so much.
    This is based on Mr. Chesney's comment before. So the Obama 
administration's formulation requires that there be a link with 
al-Qaeda before you can do any targeting here. Is that correct? 
The way it is formulated right now, this policy requires a link 
to al-Qaeda. Is that right?
    Mr. Chesney. The policy is formulated in a way that is 
careful to say that it is making an affirmative claim of 
authority to attack where there is that senior al-Qaeda link. 
But I don't think it is written in a way that suggests that 
they are denying they have authority otherwise.
    But they do build al-Qaeda or associated forces of al-
Qaeda, and of course, the ``associated forces'' phrase raises 
the question how broad is that?
    Mr. Goodlatte. The time of the gentleman has expired.
    And the Chair now recognizes the gentleman from Texas, Mr. 
Poe, for 5 minutes.
    Mr. Poe. Thank you, Mr. Chairman.
    Thank you, gentlemen.
    I would like to get back to some basics, and I know this 
may trouble Mr. Nadler, but I probably agree with him on much. 
Don't make you nervous, Mr. Nadler.
    But in the big scheme of things, when this all came to 
light, myself and Mr. Gowdy from South Carolina wrote a letter 
to Eric Holder back in December asking for specific 
constitutional authority and tracking it to the activities of 
drone strikes against Americans overseas. We didn't get an 
answer. We have sent a letter subsequent to that when we got 
more information on February 8th. We still haven't received an 
answer from Eric Holder.
    And then, as the Chairman has pointed out, there is no one 
from Justice here. With their battery of lawyers, we hadn't got 
one that will stand here or sit here and tell us the 
constitutional authority for killing Americans overseas that 
fit this criteria.
    I would like unanimous consent to introduce both of these 
letters into the record, Mr. Chairman.
    Mr. Goodlatte. Without objection, they will be made a part 
of the record.
    [The information referred to follows:]
    
    


                               __________
                               
                               
                               
                               
                               __________

    Mr. Poe. My background is a judge. I believe in judicial 
review. I get troubled by prosecutors who want to do judicial 
things and then not tell us how they come to certain 
conclusions. I don't buy the argument there is not enough time 
to get some judicial review. Twenty-two years of experience, 
judges working with law enforcement can move pretty fast under 
all of the serious examples that you have talked about.
    So I don't buy that we have to let prosecutors do judicial 
review. They work for the executive branch. That is just my 
constitutional perception on that whole issue.
    So I think the points are, as you have said, who fits this 
criteria, and who makes the determination that that person fits 
the criteria? Senior-level executive branch person yet to be 
named, like a draft choice, that troubles me. Who is that 
person? We don't know. It is just a senior-level executive 
person. I don't think that is the authority of the executive 
branch.
    And then who makes that determination and then that person 
is allowed to be on the kill list. Mr. Chesney, University of 
Texas, congratulations, by the way. Two daughters there.
    Mr. Chesney. Hook 'em.
    Mr. Poe. Hook 'em. But let me ask you this, and you made 
the comment during your testimony that if there is a judicial 
review, it is a good idea maybe to review it when the person is 
put on the kill list.
    I am troubled with the concept that they are put on the 
kill list, they are killed, and then we are supposed to have a 
review after that to see if it was lawful? I mean, that doesn't 
do the dead guy much when we find out, oh, we made a mistake 
here, you know?
    And don't get me wrong. I don't like these people. I think 
they need to be--long arm of the law ought to deal with them 
about crimes against America. But I would ask for you to weigh 
in on this to help us improve this system that we are operating 
under because, as you pointed out, you have got to get judicial 
review to listen to a phone conversation with an American 
overseas, but you don't need judicial review to kill them 
overseas.
    So do you think we need some kind of judicial review at the 
outset of putting this person on the kill list?
    Mr. Chesney. Sir, I think it is a good idea, and I think it 
can be done, if done very carefully. And I think the key to 
doing it carefully so that it simultaneously addresses both the 
interests of the citizen and the imperative of protecting the 
country that rests on the President shoulders is to 
disaggregate the questions you might ask. We don't want judges 
interfering in extremely time-sensitive questions about should 
we pull the trigger right now in this instance? There is only 
this much time to do it.
    But that is not actually the fact pattern presented by 
these specifically identified kill list scenarios. As we know, 
as the al-Awlaki case illustrates, there is a considerable 
period of time and there is a distinction between deciding is 
the person in the attackable category in general and whether or 
not some particular attack should be carried out. And there is 
a role for the judiciary if Congress wants to establish it, and 
I think they probably should, as to early stage determination, 
which isn't a time-sensitive determination in the same way.
    Mr. Poe. You know, we have been talking about one 
individual. What if the individual is not in one of the 
countries that we all suspect where al-Qaeda is? Because now 
they are everywhere. What if the individual is in one of our 
allies' country? What if they are in France? What if they are 
in Mexico? What if they are in Canada? Is the discretion with 
the White House, whoever it is, to get that person on the kill 
list, and all of a sudden, they end up in France, and we can go 
after them?
    Mr. Chesney. Sir, I think there is a different set of rules 
that come into play in that scenario.
    Mr. Poe. All right.
    Mr. Chesney. Now it connects up with the Administration's 
rationale that they emphasize capture must not be feasible. If 
you have someone in France, the United States, Mexico, England, 
any of these places, capture is almost certainly going to be 
feasible. And that alone may address it.
    Mr. Poe. I know my time is limited. In fact, I am out. But 
I would just like to ask, though, is that discretionary with 
the executive branch? Is that policy, or is that written law?
    Mr. Chesney. I don't think--well, the whole problem here 
with the uncertainty is we don't have clear written law, right? 
It is uncertain. That said, I do think that the feasibility 
test may well be implicated by the Fifth Amendment and the 
Fourth Amendment.
    Mr. Poe. All right. Thank you.
    Mr. Wittes. May I just add something to that?
    Mr. Poe. That is up to the Chairman.
    Mr. Goodlatte. Very briefly, Mr. Wittes.
    Mr. Wittes. So, I mean, I do think when you are talking 
about potential lethal force operations in allied countries or 
countries other than Pakistan, Yemen, Somalia, Mali, you are 
talking about a situation where the other legal constraints on 
U.S. action, particularly sovereignty come into play.
    And one of the things that causes those environments that 
we operate in to be relatively permissive is either the consent 
of the governments in question to do those operations, which 
presumably Canada and France are not going to give, or a 
finding--and this connects up with the point that Professor 
Chesney was making about the feasibility of capture--a finding 
that they are either unable or unwilling to manage the threat 
that the individual poses, which their law enforcement capacity 
would make very difficult to make.
    Mr. Poe. Thank you, Mr. Chairman.
    Mr. Goodlatte. Let me, if the gentleman will yield?
    Mr. Poe. Certainly.
    Mr. Goodlatte. I would yield an additional 30 seconds to 
make the point that we don't want to put ourselves in the 
position with this analogy drawn by Mr. Wittes that we are 
going to rely on the foreign government to protect the rights 
of the United States citizen, as opposed to our own government 
protecting those rights.
    Mr. Poe. Thank you, Mr. Chairman.
    Mr. Goodlatte. And I would now be pleased to yield to the 
gentlewoman from California, Ms. Lofgren, for 5 minutes.
    Ms. Lofgren. Thank you, Mr. Chairman.
    I have just a few quick questions. I am, I will just be 
frank, troubled that the memorandums that allegedly provide the 
legal basis for this have not been shared. And I am just sort 
of wondering, and maybe you can't, any of you, answer it. But 
if you can, I would be interested. What conceivable reason 
there would be for the Obama administration to not share these 
memos and what the consequences are for not sharing these 
memos?
    Anybody who can answer that, I would like to hear.
    Mr. Bellinger. Actually, it may surprise you, as a 
Republican official, but I will actually take a stab at 
defending the Administration on this, having spent 4 years as a 
White House lawyer.
    This is the private legal advice that was given to the 
President of the United States. And just the way this Committee 
is allowed to rely on Mr. Ramer's advice and the President 
could not say we want to see the advice that Mr. Ramer is 
giving to you, to see what advice you are getting----
    Mr. Goodlatte. Would the gentlewoman yield on that on 
point? Because they have shared that advice with other Members 
of Congress.
    Ms. Lofgren. Yes.
    Mr. Goodlatte. And this is the Committee that has oversight 
responsibility.
    Mr. Bellinger. And let me just finish the point. What we 
are talking about is not sharing a particular document. The 
Administration, to the extent they have not made clear what 
their legal analysis is, absolutely they owe you a full 
explanation of their legal----
    Ms. Lofgren. Well, if I may, I mean, what you can and what 
you should do are sometimes different.
    Mr. Bellinger. Right.
    Ms. Lofgren. And it strikes me in this case that this is 
one of those cases, where if you take a look at the 
Authorization for Use of Military Force, which all of us voted 
for, for those of us who were here--there was only one no vote 
in the House--it says the President is authorized to use all 
necessary and appropriate force against those nations, 
organizations, or persons he determines planned, authorized, 
committed, or aided the terrorist attacks.
    Now are we to believe that everybody on this list was 
responsible for the 9/11 attack? I mean, is that the rationale?
    Mr. Bellinger. No. You are exactly right. I think you have 
all four of us agree with you that the 2001 AUMF, which is only 
about 60 words long--I was involved in drafting it literally 
almost on the back of an envelope while the World Trade Center 
was still smoldering--is now very long in the tooth.
    The good government solution, while extremely difficult and 
controversial, would be for Congress to work together with the 
executive branch to revise that AUMF. It is completely unclear 
about what it covers, who it covers, where it covers it.
    Ms. Lofgren. Well, if I may, I think it is not as unclear 
as you suggest. I mean, this was a limitation, and there were 
big arguments about it. As you are, I am sure, aware, there was 
a prior draft that was much more expansive, and it was narrowed 
so that we could get bipartisan consensus, and it was narrowed 
for an important reason.
    And I guess I--yes, the executive has the ability to keep 
his legal advice confidential. That is a longstanding 
principle. But since it looks like at least questions are 
raised as to whether the executive is complying with the law, 
that if he feels he is, I think it would be a very positive 
thing for the Administration to share that legal theory with 
this Committee and with the American people, who I think have 
doubts that are substantial.
    And if it can be cleared up, that would be a good 
government response, it seems to me. And if it can't be cleared 
up, then we have another serious type of problem that we have 
to deal with.
    Mr. Bellinger. I will agree with you about 99 percent of 
the way. To the extent that the Administration's legal theory 
remains unclear to Congress, anybody in Congress, I think 
Administration officials should be up here to explain it, 
either publicly or privately, to put down in writing what they 
can. I think the questions that you raise are absolutely fair.
    Is it really clear that 4,000 people who are dead, that 
every single one of those fell within the AUMF, or did the 
President in some cases rely on his constitutional powers? 
These are really legitimate questions. The only thing I would 
say is that the President of the United States is allowed to 
receive a particular memo on a particular day and rely on that 
particular counsel.
    Ms. Lofgren. Well, I will just say--and I was not a huge 
fan of the Bush administration, as I think many of my 
colleagues know. But we actually did get access, this Committee 
did get access to their memorandum laying out their rationale. 
I thought it was poorly written and misadvised, but at least we 
were provided with the analysis that they were attempting to 
rely on. And I would expect no less from the current President.
    I yield back.
    Mr. Goodlatte. I thank the gentlewoman.
    And the Chair recognizes the gentleman from South Carolina, 
Mr. Gowdy, for 5 minutes.
    Mr. Gowdy. Thank you, Mr. Chairman.
    In a brief, but inspiring piece of bipartisanship, I want 
to express, along with my colleagues, my frustration, Mr. 
Chairman, at the DOJ's absence today. Some of my colleagues 
know I worked there. I have plenty of friends that remain. I 
respect their work.
    I understand not responding to a letter from some guy from 
South Carolina. I don't really understand not responding to 
Judge Poe's letter. I really don't understand not respecting 
this Committee enough to send someone.
    Because if they were here, and don't misunderstand me. I 
appreciate your presence. I am grateful that you came. But my 
questions were going to be directed to them for this reason. I 
don't need a DOJ memo to tell me that you can use lethal force 
to repel an imminent threat. I didn't need them to tell me 
that.
    Police officers shoot folks all the time. Private citizens 
shoot folks who are invading their homes all the time. In fact, 
noncitizens can shoot a United States citizen without having to 
go to a judge beforehand. Now there is review afterward, both 
criminal and civil. But I didn't need the Department of 
Justice, Mr. Chairman, to tell me that.
    I also did not need the Department of Justice in a memo to 
explain to me that in times of war you don't need a judge 
picking your targets for you. In a time of war, you can't have 
a judge weighing and balancing whether or not there is too much 
collateral damage in this building or this village.
    What I really want to ask the Department of Justice, Mr. 
Chairman, is this. There are two references in this memo were 
the target of a lethal operation a U.S. citizen who may, who 
may have rights under the due process clause in the Fourth 
Amendment. That is on page 2, Mr. Chairman. And then on page 5, 
the department assumes that the rights afforded by the Fifth 
Amendment's due process clause, as well as the Fourth 
Amendment, attach to a U.S. citizen even while he is abroad.
    So if the Fifth Amendment attaches and the Fourth Amendment 
attaches, does a U.S. citizen traveling abroad enjoy the full 
panoply of constitutional protections? And if not, why not? 
Whichever law professor--I would pick the one that gave me a 
bad grade in con law, but he is not here. So whichever---- 
[Laughter.]
    Mr. Wittes. I think I can take a crack at why the 
Administration----
    Mr. Gowdy. Well, no, I mean, here is what I want. Does the 
Eighth Amendment apply?
    Mr. Wittes. So I think the background behind which the memo 
that this white paper is based on is critical to this question.
    Mr. Gowdy. I just--and I appreciate that. I just want to 
know does a U.S. citizen enjoy the full panoply of 
constitutional protections when they are traveling abroad? 
Because this memo said they may, or we are assuming. Does the 
Fourth Amendment apply?
    Mr. Wittes. Well, so I think--I will let an actual 
professor of constitutional law answer.
    Mr. Gowdy. Oh, I don't care. Anybody who knows. Does the--
do I have to abide by Miranda?
    Mr. Wittes. The Supreme Court said in Verdugo-Urquidez, it 
raises very serious, held that the Fourth Amendment does not 
apply abroad, and there are----
    Mr. Vladeck. To noncitizens.
    Mr. Wittes. To noncitizens. There are----
    Mr. Gowdy. I am not talking about noncitizens. I am talking 
about citizens abroad, do they or do they not----
    Mr. Vladeck. The short answer is yes, right? The short 
answer is----
    Mr. Gowdy. Oh, so the Eighth Amendment applies?
    Mr. Vladeck. Yes. Now the court----
    Mr. Gowdy. And the Fifth Amendment applies?
    Mr. Vladeck. Yes. But courts----
    Mr. Gowdy. And the Sixth Amendment applies?
    Mr. Vladeck. Courts have said, Congressman, that in that 
context the rights may vary in their scope.
    Mr. Gowdy. Okay. Well, this is where I am headed. How is 
the analysis different if it is a U.S. citizen that meets the 
department's criteria that is in Charleston, South Carolina, 
instead of somewhere else? So if you have the same panoply of 
constitutional protections overseas as here, can you use the 
imminent threat argument to take out an American citizen on 
American soil? And if not, why not?
    Mr. Vladeck. Congressman, I think this goes back to a point 
we were discussing before, which is the relevance of the 
feasibility of capture piece of this. And----
    Mr. Gowdy. So that is the only thing we get to hang our hat 
on is the feasibility from some senior-level DOJ official who 
decides whether or not it is feasible or not to capture me.
    Mr. Vladeck. Well, as I suggested, Congressman, I think 
that feasibility should be reviewable after the fact. But I 
think----
    Mr. Gowdy. That is of little consolation if you are dead.
    Mr. Vladeck. I think that----
    Mr. Gowdy. Is there criminal review?
    Mr. Vladeck. If the Government wants to bring--if the 
Government wants to indict one of its officers for violating a 
criminal statute, certainly.
    Mr. Gowdy. So you think this memo would allow. Well, who 
would do it? Because that would be the executive branch, right? 
We have not had much success getting the executive branch to 
enforce laws against itself. I can just tell you in the 2 years 
I have been here, we are 0 for 3 or 4 on that.
    Mr. Vladeck. Well, Congressman, certainly, there is 
precedent. If this Congress wanted to revisit, for example, the 
independent counsel statute, I think we could have a very 
interesting hearing on that front as well. But----
    Mr. Gowdy. Well, I am out of time. But Mr. Chairman, I 
would love at some point for the Justice Department, if we are 
not taking too much of their time, to come and explain to us 
whether this analysis is equally applicable to American 
citizens on American soil. Because the feasibility of capture 
is little consolation to me if that is the only thing 
protecting us from this operation.
    Mr. Goodlatte. I thank the gentleman. And I would note that 
the invitation was extended, and it will stand open.
    The Chair now recognizes the gentleman from Florida, Mr. 
Deutch, for 5 minutes.
    Mr. Deutch. Thank you, Mr. Chairman.
    Mr. Bellinger, you said earlier in your testimony and then 
in an exchange with Mr. Nadler, you spoke about the need to 
have clear international rules. Mr. Nadler raised the question 
of what would happen if action were taken by other countries. 
And I had to excuse myself to attend another meeting, and if 
you have elaborated, I apologize for asking again.
    But this conversation that we are having about 
constitutional protections and how this drone program against 
al-Qaeda functions under our Constitution is obviously of the 
greatest import to this Committee. But the issue that you raise 
is a very good one. What are those international rules? Who 
sets them? What standards would be in place?
    And is it--well, let me actually let you elaborate a bit, 
and then I will ask a follow-up question.
    Mr. Bellinger. No, I am delighted really that you asked 
that question. We know the Judiciary Committee, of course, is 
most concerned about the protection of Americans in this 
hearing.
    But as has been alluded to, 3,000 to 4,000 of the people 
who are dead are non-Americans. And so, in those cases, they 
don't have constitutional rights. The rules that would apply to 
them would be international law. And both the Bush and the 
Obama administrations have tried hard to clarify that they are 
complying with international law. They are not using force in 
another country in violation of international law, or they are 
not killing people in assassinations or murders.
    That said, no other country in the world has come out 
publicly and said they actually agree with our position. That 
is a very unsteady place for the United States to be. I was the 
general counsel of the State Department. I wanted the United 
States to appear around the world to be acting in accordance 
with international law, and the Obama administration has 
asserted this, and I believe that they are.
    But we are in a position where most other countries don't 
agree with this, are beginning to accuse us of violations of 
international law. And the Administration needs to work harder 
really to clarify those rules.
    Mr. Deutch. What are the violations that--who is making 
those accusations, and what are they accusing us of?
    Mr. Bellinger. We have got--other countries have begun to 
raise concerns. There are lawsuits now both in Pakistan and in 
the UK. There is a lawsuit against the British foreign 
secretary, suggesting that the sharing of intelligence 
information by the British government with the American 
Government may actually constitute war crimes. That is making 
British intelligence officials nervous. That is being closely 
watched throughout Europe.
    Mr. Deutch. What would those--in order to address these 
issues going forward, both because of potential actions that 
other nations may take that would put, as you described 
earlier, that will put our State Department spokesman in a most 
difficult situation to have to deplore those while standing up 
for the drone program that we utilize, what are the standards 
that would be put in place, though? And how--tell me what that 
regime looks like and where does it come from.
    Mr. Bellinger. These are great questions. I spent 4 years 
as legal adviser in thousands of conversations with European 
allies, some of whom are actually in this room today, 
representatives of different embassies, listening to the Bush 
administration try to explain why what it was doing, which 
appeared to be improper, was actually lawful.
    And the Obama administration, which never expected to be in 
the same position of having allies around the world accusing it 
of illegal activity, frankly needs to go to the same effort 
now. And the rules would essentially be to say it is not to 
start with a treaty. This is too difficult to try to negotiate 
a 194 country treaty. But to agree on basic legal principles, 
such as a country can use lethal force against a terrorist in 
another country who is threatening an attack if that country is 
unwilling or unable to prevent that threat.
    In most cases around the world, 190 countries, the 
countries are able to prevent that threat. They can go arrest 
the person. Their polices work. But in four or five countries--
Yemen, Somalia, Pakistan--we want to get countries around the 
world to acknowledge the United States or any country's right 
under international law to use force to kill someone in another 
country who is posing a threat when it can't be addressed in 
another way.
    I think we can get there, but it certainly makes other 
countries uncomfortable, and they are just not going to agree 
to our position unless we go out through some aggressive 
international legal diplomacy. I mean, really, it is a great 
line of questions.
    Mr. Deutch. And the likely position that some would take 
that would point to this hearing and the debates in this 
country and say you are having a hard time--hard enough time 
coming to terms with this idea at the very earliest stages of 
the potential that drones will offer. You are having a hard 
enough time coming to terms with this under your own 
Constitution, and now we are going to have a broader discussion 
internationally. You are going to suggest to us what we should 
and shouldn't do.
    I am not sure that we are quite at the point where that 
conversation can take place.
    Mr. Bellinger. It is very difficult. The Bush 
administration spent a long time trying to explain to people 
why it was lawful just to detain people without trying them. 
Most other countries in the world said, ``Wait a minute. You 
can't hold someone without trying them. That is a basic element 
of due process.''
    Well, this is actually much more aggressive. The Obama 
administration isn't just detaining them. They are killing 
them. And so, we need to work hard to explain, as a country 
that is committed to the rule of law, why to other countries 
who look to us for our example, why what we are doing is, in 
fact, legal. We can't--it is important to have this hearing 
here, but we need to go around the world and explain why it is 
legal under international rules.
    Mr. Deutch. Thanks. I appreciate it, Mr. Bellinger.
    Mr. Goodlatte. I thank the gentleman. Good questions, and 
the time has expired.
    The gentleman from Florida, Mr. DeSantis, is recognized for 
5 minutes.
    Mr. DeSantis. Thank you, Mr. Chairman.
    Thank you all for your testimony.
    I guess I disagree a little bit with the characterization 
of this as very limited. I mean, it is limited in the sense, 
the DOJ analysis in the sense that they say all we are saying 
is that we have sufficient grounds in this instance. But they 
don't say that they can't go beyond that, and they don't say 
that there is going to be more restrictions otherwise.
    Do you all agree with the fact that they base their 
analysis not simply on the AUMF, but basically said there is 
Article II authority and Article 51 authority, that if you 
didn't have the AUMF, the President would still have the 
ability to engage al-Qaeda leaders overseas?
    Mr. Chesney. Well, I think the Administration would always 
take the position that it has the authority under Article 51 
and Article II to defend the country against an imminent 
threat. That, of course, leaves open the question of what the 
substantive content of an imminent threat is.
    But to the extent that tomorrow Hezbollah presents an 
imminent threat, though it is totally outside the AUMF, the 
Administration would certainly assert the authority, both as a 
matter of Article 51 and at a domestic level under Article II 
to counter that with lethal force.
    Mr. DeSantis. And perhaps even if it wasn't an imminent 
threat, such as the example of Libya, there was no 
congressional authorization for us to go and get engaged in 
Libya. So I am somebody who I really think the AUMF is 
important because I think that activates the President's war 
powers.
    I think when you are dealing with these issues, whether you 
are going to treat it in a civil context or a law of war 
context, the fact that this Congress has authorized that, to 
me, means a lot. And so, I guess the logic of this analysis, 
although it only applies to senior al-Qaeda leaders, there is 
nothing preventing the Administration from applying this in 
other contexts. I mean, you do have to make analyses that can 
apply to different facts.
    And so, I guess my question, and we can just start with Mr. 
Bellinger. Libya, no AUMF for Libya. We went in. It was an 
international coalition. My question is if there was an 
American citizen who, say, traveled to Algeria, joined the pro-
Gaddafi army, was somebody who was a major operational leader 
in bringing arms into Libya, that would fight not only the 
resistance, but American forces and our allies, based on how 
you read the memo, do you think that they would have been 
justified or do you think this provides justification to engage 
an American citizen in that instance?
    Mr. Bellinger. The answer is, under the memo, probably not. 
Because under your facts, the person would not be a senior 
operational al-Qaeda leader that was posing an imminent threat 
of violence to the United States.
    Mr. DeSantis. Right. But what my question is, is they limit 
it to that, but the logic of what they are saying, why is it so 
important--if the AUMF is not critical, the al-Qaeda versus 
somebody who is fighting Gaddafi. So is there a logical 
distinction between those two if you don't think the AUMF is 
critical?
    Mr. Bellinger. Well, this Administration, of course, at 
least has said that they are relying only on the AUMF. There 
are a lot of us who wonder 12 years later how it can possibly 
be that all of this use of force in a lot of different 
countries around the world against people who may have only 
been 10 years old in 2001 still falls under the AUMF.
    So I think it is a good set of questions as to whether this 
Administration would rely on the President's constitutional 
authority to strike somebody who did not fall in the AUMF.
    Mr. DeSantis. And here is just where I am reading in the 
memo. In addition to the authority arising, in addition to the 
authority arising from the AUMF, the President's use of force 
against al-Qaeda and associated forces is lawful under other 
principles of U.S. and international law, including the 
President's constitutional responsibility to protect the 
Nation, the inherent right of national self-defense under U.N. 
Charter Article 51.
    I obviously agree with that if it is a truly imminent 
threat. The question is in a situation like Libya, where it is 
very much an intervention of choice, probably didn't pose an 
imminent threat to the United States, how does this kind of 
framework apply in that instance with an American citizen?
    Mr. Vladeck. But I mean, Congressman, even there, I think 
the question would be suppose that we had a regimen of fighters 
stationed at an Air Force base in Libya. Presumably, if an 
American citizen who goes to Algeria to take up arms on behalf 
of pro-Gaddafi forces is then involved in an attack on U.S. 
military forces who are involved, who are stationed there, then 
I think we wouldn't have to talk--that wouldn't be----
    Mr. DeSantis. Well, no, no. Right. But I agree with that. 
But not necessarily involved in an attack. Somebody who is 
across the border in Algeria, who is maybe doing logistics or 
something.
    Mr. Vladeck. And so, that is right. We haven't talked a lot 
in this hearing about international law, but I think it is 
relevant. It would be very relevant at that point whether in 
fact what was true in Libya was a non-international armed 
conflict or even an international armed conflict that would 
justify the assertion of military force. Because I think you 
would have both domestic law problems insofar as it was outside 
the scope of the AUMF or the war powers resolution and very 
serious international law problems if it was not part of a 
larger armed conflict.
    Mr. Wittes. May I just add something to that? So I think 
one of the oddities of the white paper--and I would actually 
think it is a very ripe area for this Committee to follow up 
with the Administration about--is exactly what work the word 
``imminent'' is doing. It is not clear to me from reading the 
white paper whether the word ``imminent'' is an attempt to get 
over domestic constitutional hurdles, whether it comes from 
sort of resort to force questions in international law, the way 
Steve was just referring to, or whether it is an attempt to get 
around domestic criminal prohibitions against--as a sort of 
affirmative defense in domestic criminal prohibitions against 
murder of Americans overseas, or whether it flows from some 
other need.
    It is simply there as an apparently self-imposed 
constraint, and it is not exactly clear what legal problem it 
is designed to solve. And I think some of the questions that 
you are asking, the answers to them would be different 
depending on what work the word ``imminent'' is doing. And I 
sort of talk about this a little bit in my written statement, 
but I think it is an area that is very worth this Committee 
pushing the Administration for some clarification.
    Mr. DeSantis. Thank you. And thank you, Mr. Chairman.
    Mr. Goodlatte. Thank the gentleman.
    The Chair recognizes the gentleman from Texas, Mr. Gohmert, 
for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    And this is an exceedingly important topic. We do 
appreciate your being here today. Obviously, the Justice 
Department's folks are busy doing something more important than 
having oversight. I wish that they didn't need it.
    All of these issues are deeply troubling, and I, like my 
friend former Judge Ted Poe, big believer in due process. We 
are talking about imminent attack is one of the issues, and we 
have got a lot of people that brought up the issue of al-Awlaki 
being killed in Yemen. But I think it is good to look ``what 
if'' scenarios before those scenarios actually happen.
    We know that al-Awlaki had led prayers for Muslim 
congressional staffers here on Capitol Hill. We know that he 
was probably not done in the United States.
    Can you foresee a time when someone like al-Awlaki is on a 
hit list, finishes what he was doing in Yemen, and somehow gets 
back in the United States? If there was concern of imminent 
attack while he was in Yemen, could there be those same 
concerns? When would it then be possible for someone on the hit 
list, as al-Awlaki was, to be hit in the United States proper?
    Mr. Wittes. Sir, I think the--sir, the al-Awlaki case will 
be someday the subject of a truly wonderful book. It is a very 
complicated and interesting history.
    I think if Anwar al-Awlaki had made it back to the United 
States, I don't think there is dispute among anybody I have 
ever spoken to that the proper way to handle him would have 
been for the FBI to arrest him and for him to be prosecuted in 
a U.S. Federal court.
    Mr. Gohmert. But my question was not about what was proper. 
My question was about the possibility of someone on the hit 
list being found back in the United States, like al-Amoudi.
    Al-Amoudi was arrested in 2002 at Dulles International 
Airport. He was arrested, as you talk about, but he had been 
very close to the Clinton administration, had worked with the 
Bush administration, and yet we find out actually he was 
involved in supporting terrorism internationally. And so, he 
gets arrested, and now he is doing 23 years in prison.
    I am asking what could be the prospect that someone get 
back in the country, and from a political standpoint, their 
arrest could potentially, like al-Awlaki, if he started talking 
about the people he worked with on Capitol Hill, the people 
that he had met with and worked with, it obviously would be 
very politically embarrassing.
    What if you have hypothetically someone who has been 
working closely with a President. We know we had a member of a 
known terrorist organization meeting in the White House last 
year, even though Secretary Napolitano, sitting where you are, 
could not answer that she even knew that was happening when it 
was in the papers. By the time she gets over to the Senate, she 
then says, ``Oh, we checked. He was vetted three times.''
    There are things that could end up, hypothetically, proving 
so politically embarrassing that if somebody gets back in the 
United States, someone might look for a way to see that they 
never testify. We are talking hypothetically, but I am wanting 
to know what are the possibilities that something like that 
could happen? So that is my question.
    Mr. Wittes. Sir, nothing in the Administration's white 
paper and the Attorney General's speech would suggest that that 
would be lawful. And I would hope that any Administration, 
Republican or Democrat, faced with such a situation would 
behave like patriots and would proceed according to the law and 
the Constitution. And I would hope that this Committee, in the 
event that that did not happen, would consider it under its 
impeachment power.
    Mr. Gohmert. And then when no one from the Justice 
Department cared to participate, then what? We find them in 
contempt, and then it goes to the U.S. attorney and nothing 
happens, as it just happened last year.
    Mr. Wittes. Sir?
    Mr. Gohmert. Any other comments from anybody else? I mean, 
this is a real issue because not everybody under political 
pressure acts like patriots.
    Mr. Chesney. I can simply say that it is quite clear to me 
it would be unconstitutional to use lethal force against a 
person in that scenario precisely because capture would be 
feasible. He may still be part of an organization, may still be 
a senior leader in al-Qaeda, what have you. But----
    Mr. Gohmert. And what if your contention is there is 
imminent attack? It is planned. He helped set this situation up 
in Yemen, and we need to take him out.
    Mr. Chesney. Still unconstitutional unless----
    Mr. Goodlatte. The time of the gentleman has expired.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Mr. Goodlatte. I thank the gentleman.
    And the Chair recognizes the gentleman from Florida, Mr. 
Garcia, for 5 minutes.
    Mr. Garcia. Real quickly--thank you, Mr. Chairman--what 
steps could the executive branch take to allow appropriate 
congressional oversight and an informed public debate? And that 
I leave it to all of you.
    Mr. Bellinger. Well, maybe we will just go down the line 
here. One, I think the Administration does need to be more open 
in their legal analysis. I do think it is disappointing that 
they did not sent a witness. We are happy to be the second 
string here to try to help you out.
    But I, as a former Government official, think that it 
does--it is incumbent upon this Administration to put witnesses 
forward to explain and answer your questions. So that would be 
thing one.
    Second, I do think that the executive branch could work 
with Congress to craft a narrowly tailored law that would 
specify the circumstances in which an American can be targeted 
and the notice process to Congress. So I think that would be 
the main thing that the executive branch could do would be to 
work with Congress on narrowly tailored legislation that does 
not tie the hands of the President.
    I will go back on the judicial review point that we--in all 
these cases, we are talking about an armed conflict. And the 
gentlemen from Texas and South Carolina are no longer here, but 
we are talking about a situation where the President is dealing 
with a war, with an armed conflict. And it is really 
inappropriate to insert judicial review to tie the President's 
hands in a war.
    No one would ever have suggested that before the President 
could order an attack against a German American who was a high-
level German leader that one had to go to a judge beforehand or 
afterhand to allow that German American's family to come and 
have a judge perhaps tie the President's hands.
    Mr. Chesney. Active participation and oversight efforts by 
this Committee and others obviously is critical, and I echo 
what has already been said on that point. I think--we were 
asked earlier how much consensus we had on the substantive and 
procedural issues that are driving all of this. I think it is 
fairly clear that we have consensus that it would be very 
useful for Congress to express itself, if it was willing to do 
so, as to what the substantive bounds of targeting an American 
ought to be. If there is an issue with the imminence standard 
or the feasibility of capture standard, this can be addressed.
    I don't think we have consensus as to whether and to what 
extent a judicial role is either necessary as a constitutional 
matter or permissible. And I think I am probably the one who is 
most in favor of a permissible role, ex ante. Steve is the most 
in favor ex post, and I think other than that, we have an array 
of views here.
    Mr. Wittes. I think one thing the Administration could do 
is to talk more and more and more about what the internal 
procedures it is using actually looks like. So starting with 
the President's speech at the National Archives in 2009, and 
particularly continuing through Harold Koh's speech at ASIL the 
following year, and in a series of speeches over the next 3 
years really, the Administration talked a lot about the 
underlying legal regime, not at the level of granularity that a 
lot of people want, and I certainly would encourage them to be 
more granular on that score.
    But to me, the biggest hole is actually not a legal hole. 
It is a procedural hole, and it goes to the question that 
Congressman Nadler and I were discussing before. Not the 
substantive content of who you can target. They have been 
pretty clear about that. It is what hurdles do you have to go 
through before you conclude that somebody is in that basket at 
all?
    And on this question, they have said very, very little 
except to say repeatedly that there are rigorous internal 
checks. But I would like to see them, you know, talk more about 
what those internal systems look like. Almost everything we 
know about it is a result of press coverage and leaks. It is 
time for them to have something substantial to say on the 
subject.
    Mr. Vladeck. I don't have much to add to my colleagues 
other than I think that the most interesting omission from the 
white paper is exactly what Mr. Wittes was suggesting, the lack 
of any sort of detailed explanation of the procedural process. 
If there are reasons why the specific facts and the 
intelligence that led us to discover those facts should be kept 
classified, that is one thing. But I don't know why the 
bureaucratic process that is undertaken by the executive branch 
in a hypothetical case is a matter of national security.
    Mr. Garcia. I think you can imagine the problem is that we 
argue about everything here, right? And so, the idea that we 
would put some kind of process forward. I fully understand your 
point, and I appreciate it. And as a lawyer, I think it is 
necessary.
    But the idea that that process would be put forward to then 
be analyzed in a vacuum without the exigency of circumstances 
is I think something that would be a debate that I understand 
your wanting it, but I understand under the present climate, it 
is just almost impossible.
    Mr. Wittes. I think there is a lot of merit to that point, 
and I also think there is an additional factor, which is not 
about this body, but it is about the FOIA litigation 
environment that the Administration is in. And one of the 
problems that, you know, within the bureaucracy people are 
constantly worried about is the incremental effects on FOIA 
litigation that every incremental disclosure has.
    And I think that that is every time you consider saying X, 
you know that you are going to get a brief filed in the next 
day that says you have now confirmed X, we want 2X. and I think 
somehow we need to figure out whether there is some kind of 
safe harbor that we could create that doesn't actively 
discourage the Administration from making disclosures, 
particularly to this body----
    Mr. Garcia. Maybe that is where we should be working 
towards. I have listened to Johnson tapes where toward the end 
of the war, he got into this crazy habit of sitting with his 
Cabinet deciding where the bombs were going to land. It is just 
an insane process when you are engaged in war. I am sure I 
don't have to make that point to all of you.
    Likewise, I think you have watched the insane process that 
we partake of here when we argue how many angels fit on a 
pinhead. So maybe you putting forward a process that you think 
would be acceptable. I just find that if the President would 
engage in that, I think what he would be doing is opening up an 
argument for my friends on the right, which would be to say 
look at all the due process these guys get, right? And then a 
point from our side, which would say that is not enough due 
process.
    And then, of course, the whole point of this is missed, 
which is these are enemies of our country. We hope that when 
someone is elected from our side or the other side that they 
use this discretion of their office, which in this area tends 
to be pretty broad in wartime, with all the merit that we would 
expect someone who serves in that role.
    But gentlemen, thank you for your thoughtful answers, and 
thank you for your fighting for these issues. It is important.
    Mr. Chairman, I yield back the balance of my time. Thank 
you.
    Mr. Goodlatte. I thank the gentleman.
    And the Chair is pleased to recognize the gentleman from 
Georgia, Mr. Collins, for 5 minutes.
    Mr. Collins. Thank you, Mr. Chairman. I appreciate it.
    I mean, as we come to sort of this timeframe, I think what 
is interesting is I agree with my gentleman from across the 
aisle. We do argue sometimes about things, the angels on the 
top of a pinhead. But the problem we have here today is we 
can't argue about anything because Justice chose not to show 
up. They forfeited. They came. They had an opportunity, and 
instead of engaging within the confines, they chose to take a 
pass. They chose not to come again.
    It is interesting in your comments earlier about being in 
the Bush administration over to the Obama administration. It is 
amazing to me, as my grandmother used to tell me a long time 
ago, don't criticize somebody too hard. You might be in their 
position one day. It is amazing what has happened now. They are 
in that position.
    And I think what has been said here on several occasions 
really highlights that. I believe honestly the Administration 
doesn't want a definition of imminent threat because at that 
point then they have to actually define what is imminent and 
when is it going to be applied and in what area is it going to 
be applied? You don't really want a feasibility of capture.
    I would tend to disagree, although this esteemed panel has 
said, well, if they were in the United States that they could 
always fall back on feasibility and that would exempt them. I 
am not so sure that is actually true, not in our society today.
    As we look at this, I do have the distinct concern is what 
is and how long this white paper depended on the AUMF. That was 
the basis of its whole determination. How long do you feel--in 
a sort of a short answer here, how long can this Administration 
or even follow-on Administration keep this argument? How long 
is this going to last? Especially when we have shut down the 
war in Iraq. We are getting ready to move out of Afghanistan.
    And as someone who has served in Iraq in this area, I want 
to just in a brief answer--I have another question--how long 
can they continue to depend on this?
    Mr. Chesney. Sir, a couple years ago, my colleague Mr. 
Bellinger wrote an op-ed in the Washington Post warning that 
the AUMF was growing stale. More recently, Mr. Wittes, myself, 
Professor Jack Goldsmith, and Professor Matt Waxman just this 
week published a paper arguing that the growing threat of 
threats beyond AUMF is making it more and more imperative that 
Congress look at this issue very seriously.
    Mr. Collins. Well, I think the question also comes here, 
the determination of whether it be before the action is taken 
to the process of judicial review, if there is one, or 
standards review or opposed, which I have a question about 
that, which I will get to in a second. I think the issue that 
comes to my mind here is we don't really have this review right 
now. There is that veil of secrecy, if you would.
    And I would say from this Administration, there is no one 
denying the Article II privilege. There is no one denying that 
there is--the ability is there. However, what we are having a 
real issue with here and I think the American people are having 
a real issue with is we have the secrecy going on. Explain at 
least in the sense when we are dealing with American lives 
overseas and you have a process that you say you have a process 
on, that is about like me going to my 14-year-old and saying, 
``Okay, what is your decision-making process?'' ``No problem, 
Dad. I've got a process.'' ``What's your decision-making 
process?'' ``Just trust me.'' This is not what we can take.
    I do have a question, though, about if we do it after the 
fact. Of course, I have a problem with the fact that they are 
dead. You know, that, to me, is sort of damages, as you put in 
your paper, never make you whole completely.
    But my question is, and you brought this up, we wouldn't 
indict one of our own, and my colleague, I believe Mr. Gowdy 
from South Carolina, made this comment. We are not going to 
indict one of our own. And if we did, let us just play this out 
for a second. If we did decide who was at fault, my question 
for you is who would be at fault?
    What we have seen many times is we are going to throw the 
lowest person under the bus. It is going to be the drone 
operator. He should have disobeyed--so explain to me, if you 
can, what is the process? Where would you stop in culpability, 
and would it stop at the President?
    Mr. Vladeck. Congressman, I think it would depend on the 
decision-making process, which, as you mentioned----
    Mr. Collins. Non-existent.
    Mr. Vladeck. Or I doubt it is non-existent. We are 
certainly not privy to it. And so, I think it would very much 
depend on who actually was the one who made the decision that 
had the legal error in it. Who is the one who said, oh, in 
fact, even though this guy only was at this guest house, that 
is enough to decide that he is a senior operational leader of 
al-Qaeda. And I think that would be where the buck would stop.
    But if I may just briefly, I think the Congress could write 
a statute where the damages piece of it wouldn't depend on who 
was actually at fault. The purpose of the Westfall Act is to 
say that when a Federal officer is acting within the scope of 
his employment, it is the Federal Government that is at fault 
writ large. We are not going to point the finger at one guy who 
is just doing his job.
    Mr. Collins. Well, we also know how that plays out in the 
press as well, and we also know how it will play out in 
Administration politics on really, frankly, both sides. This is 
the concerning part, Mr. Chairman, as we come to at least my 
ending here is, again, I want to state it again. As has been 
said many times before, but I think it is the Administration 
today had a chance to do what this President has said overall, 
that he wants to have an open Administration which reflects the 
priorities of his Administration and his people. This is not 
happening. They took a forfeit today.
    They took a forfeit, when they could have easily came. And 
if they said, no, I can't talk about that, but we can talk 
about this. Or they could get with this Committee on a 
classified level. There are ways to do this. But simply 
ignoring a sitting Committee and saying we have got other 
things we want to do? Maybe there is other issues more 
pressing.
    But I think the American people, when they see this, this 
is a pressing issue. This is something that matters. Because in 
the end, you made a statement earlier today, Mr. Bellinger, 
that said, well, they say highlight it because we know of one 
incident. Do we really know we have one incident? Because we 
have not been able to see. That is the concern I have.
    And Mr. Chairman, this is why this is important. This is 
why this Committee needs to have the oversight, and this needs 
to have the Administration actually show up to the game.
    With that, I yield back.
    Mr. Goodlatte. I thank the gentleman for his very pertinent 
comments.
    And I want to thank all the members of this panel for a 
very good exposition of the issues involved here. I, along with 
the gentleman from Georgia, the gentleman from New York, and 
others are very troubled by the fact that we have not had 
cooperation from the Administration in terms of producing 
important documents that we need to review to conduct our 
oversight properly or a witness on behalf of the Administration 
to testify to this.
    So we will continue to work together in a bipartisan 
fashion to conduct the oversight that is necessary and to take 
the next steps that may be necessary. But in the meantime, we 
probably will have additional questions for each and every one 
of you. And so, in a moment, I will ask for unanimous consent 
to allow Members to submit written questions to you, and we 
would hope that you would answer those as promptly as you can.
    This concludes today's hearing, and without objection, all 
Members will have 5 legislative days to submit additional 
written questions for the witnesses or additional materials for 
the record.
    And the hearing is adjourned.
    [Whereupon, at 12:29 p.m., the Committee was adjourned.]

                                 
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