House Judiciary Committee Written Statements for Tomorrow’s Hearing

The U.S. use of unmanned aerial vehicles, or drones, to engage in targeted killings of specific individuals raises novel, complex, and controversial issues under both U.S. and international law. The targeted killing of U.S. citizens raises additional legal questions arising under the U.S. Constitution and U.S. statutes. I will address the domestic law issues as well as the international law issues, drawing in particular on my experience at the White House and the State Department.

In the pages that follow, I consider whether there is a useful—and constitutional—role that the judiciary might play in connection with the use of lethal force against U.S. persons overseas for counterterrorism purposes. I conclude that there is, though that role is a narrow one requiring very careful calibration. . . . What can and should Congress do, going forward, with respect to the potential role of the judiciary in decisions to use lethal force against U.S. persons abroad for counterterrorism purposes? I start with an overview of the distinct constitutional issues implicated by this subject, and then turn to a survey of the options for judicial review. In addition, I also provide a concluding section that highlights larger trends that are destabilizing the overall legal architecture of U.S. counterterrorism policy, separate and apart from the issue of targeting U.S. persons in particular.

In this testimony I want to explain the essential legal rationale underlying the administration’s position with respect to the lethal targeting of an American citizen abroad who is believed to be a senior operational leader of Al Qaeda or associated forces. I also intend to address some of the misreadings of the administration’s view, which have cast it in a far more menacing light than its rather restrained reality justifies. In fact, as I will explain, there is nothing extraordinary about the administration’s position, which actually claims very little in the way of power to target Americans. The exact contours of the administration’s thinking remain somewhat clouded by its refusal to release the legal memoranda that underlie both its public statements and the leaked “White Paper” that has recently garnered so much attention. What’s more, the precise legal theory may vary somewhat depending on whether military or covert forces do the targeting. That said, enough is public to draw the following conclusion: No significant aspect of the administration’s position on this subject ought to give rise to concern that it is claiming undue power.

My fellow witnesses’ statements already include a fair amount about the Justice Department “white paper” released earlier this month—and the various rationales it offers in suggesting a broad framework for answering that question. What I’d like to do in my testimony today is reflect on an issue the white paper raises, but does not meaningfully or adequately resolve: Even if we can reach some modicum of consensus on the specific set of circumstances in which the government may use lethal force against its own citizens overseas, how can we be sure, especially given the pervasive secrecy surrounding these operations, that those circumstances were in fact met in an individual case? To my mind, the only answer to that question is through judicial review—not ex ante through a special court modeled on the Foreign Intelligence Surveillance Act (FISA) Court, as many have suggested, or internally within the Executive Branch, as Neal Katyal proposed last week in a New York Times editorial, but after the fact, through an entirely ordinary damages action before our ordinary district courts. While it’s certainly true that a host of existing procedural barriers would make it difficult for such suits to succeed under current law, it’s equally true, as I explain in more detail below, that virtually all of these barriers could be overcome by statute.