House Judiciary Committee Feb 27 Hearing on “Drones and the War on Terror”

The House Judiciary Committee will hold a hearing on Wednesday, February 27, 10:00 am, titled “Drones and the War on Terror.”  Presumably video, a transcript, and the written submitted testimony will be posted at the committee website at some point.  The witness list:

  • John Bellinger, Arnold & Porter, and former Department of State Legal Adviser in the second Bush term.
  •  Robert Chesney, University of Texas, Austin, law professor and national security law expert.
  • Benjamin Wittes, Brookings Institution and Lawfare editor-in-chief.
  • Stephen Vladeck, Washington College of Law, American University, law professor and expert in national security law.

Well, first off, congratulations to Lawfare – all the witnesses are its founders or senior contributors to the blog, which has emerged over the last two years as the leading forum for national security law and policy (full disclosure: I’m otherwise known as His Serenity, Lawfare Reviews editor).

The hearing is billed as drones and the war on terror, but my understanding is that it will be much more narrowly focused on the question of drone targeting an American citizen.  We’ve had some discussion about that issue here at Volokh.  I have views on these issues, but I have not wanted to weigh in until after this hearing. Benjamin Wittes is one of the hearing witnesses, and he will be presenting testimony drawn in large part from a book he and I have underway now, Speaking the Law: The Obama Administration’s Addresses on National Security Law.  The book will be published by Hoover Institution Press, but will appear in chapter installments online starting in a few weeks.  The hearing testimony is Ben’s, but he is offering it as representative of both our views, and I should wait to say something substantive until he has spoken for both of us.  I’ll get his testimony up online and then comment.  But the hearing should be very  important, and I’m sure the written submissions from each of the witnesses will be of considerable value in this national discussion.

Meanwhile, let me recommend Jack Goldsmith’s Lawfare post giving a free answer to John Brennan in response to Rand Paul’s question on whether the President could ever use a domestic drone to lethally target an American citizen. Here is his draft answer for Brennan:

“I am being considered for the position of Director of the Central Intelligence Agency, which does not have authority to engage in lethal force inside the United States.  And I am not a lawyer.  However, I have been authorized by the administration to say that Congress or the Constitution or both authorize the President and his subordinates to use lethal force against a U.S. citizen on U.S. soil, consistent with the restrictions of the Fourth Amendment and other laws, in order to stop attacks on the homeland such as occurred on 9/11, or in self-defense in the face of violent resistance to proper arrest, or in the circumstances authorized by Congress in 10 U.S.C. §§ 332-334.  Such force would only be deployed as a last resort and consistent with other statutes and constitutional restrictions.  Beyond these general principles, it is impossible and imprudent to specify the various contextual considerations and contingencies that would inform the President’s exercise of his authorities.  It is conceivable that some of these authorities – for example, the President’s authority (and duty) to stop a 9-11-style attack on the homeland – could be exercised through fire from a drone, as opposed to the F-22s that the Bush administration scrambled on 9/11.  However, as I stated previously, ‘this administration has not carried out drone strikes inside the United States and has no intention of doing so.’”

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