House Judiciary Committee members differ over whether an after-the-fact review of drone strikes targeting U.S. citizens suspected of terrorism overseas was preferable to a court review beforehand.
“For me, it’s got to be retrospective, not prospective,” Steve King, R-Iowa, said during a Wednesday hearing. “I would prefer we review it here in Congress in some form rather than handing over war-fighting to the judicial branch.”
King said he fears that a court review of a proposed strike could delay taking out a threat. And while he said he prefers that Congress conduct oversight of strikes, he also said Congress has a knack for politicizing things.
But other committee members said an after-the-fact review could come too late. “That doesn’t do the dead guy much when we say, ‘We made a mistake,’ ” said Ted Poe, R-Texas.
The use of drones to target U.S. citizens has become an issue because the president’s pick to lead the CIA, John O. Brennan, guided administration policy on drones as a White House official, and also because of a leaked Justice Department white paper on when the government can target a U.S. citizen with lethal force.
Senate Intelligence Chairwoman Dianne Feinstein said her panel’s planned Thursday vote on Brennan’s nomination will be delayed at least until March 5.
Some lawmakers — including Sen. Angus King, I-Maine, and Rep. Adam B. Schiff, D-Calif. — have proposed creating a court to oversee such actions, similar to the special court created by the Foreign Intelligence Surveillance Act (PL 95-511) to oversee eavesdropping warrants.
Feinstein, D-Calif., has said she will evaluate legislative proposals on drones that include the creation of a court. The House and Senate Judiciary panels share jurisdiction over the FISA court.
“I am open-minded about whether there needs to be something done with regard to due process when the decision is made by the president of the United States to target a United States citizen for a drone attack,” House Judiciary Chairman Robert W. Goodlatte, R-Va., said at a breakfast hosted by the Christian Science Monitor earlier Wednesday. “Having said that, I don’t want to prejudge this on either side.”
Goodlatte said the Justice Department declined his invitation to testify on its legal authority to kill U.S. citizens overseas who have ties to terrorism. The Obama administration has shared with the House and Senate Intelligence committees some, but not all, of the relevant opinions by the Justice Department’s Office of Legal Counsel. But the House and Senate Judiciary panels have received only the white paper.
A panel of legal experts called to testify Wednesday largely backed the basic authority of the executive branch. “The important question really isn’t whether the government may lawfully use lethal force against its own citizens,” Stephen Vladek, an American University law professor, said in written testimony. “Instead, it’s when such force may lawfully be used.”
Vladek favored an after-the-fact court review. Robert Chesney, a University of Texas law professor, said a prospective court review could work, but only if it was limited in scope. John Bellinger, a partner at Arnold & Porter LLP, said Congress could get involved in specifying conditions and processes for targeting a U.S. citizen, but that the processes should reside in the executive branch. And Benjamin Wittes, a senior fellow at the Brookings Institution, said the Intelligence Committees already provide some after-the-fact congressional review of drone strikes.
Bellinger said that the administration has constitutional authority to conduct the strikes, but the legislative authority is shakier. He said Congress ought to revise the 2001 Authorization for the Use of Military Force (PL 107-40) because the threat has changed since it was enacted immediately after the Sept. 11 attacks. Others agreed that the 2001 measure needs to be clarified.
“It is not clear that Congress intended to sanction lethal force against a loosely defined enemy in a wide-ranging conflict with no discernible borders or ending,” said John Conyers Jr. of Michigan, the top Democrat on the Judiciary Committee.