House Judiciary Committee – questioning the Constitutionality of drone strikes

from FNC’s Chad Pergram:

Urgent: Lawmakers question Constitutionality of drone strikes

Per Pergram-Capitol Hill

 

From House Judiciary Committee. Fed back live.

 

Chairman Hon. Bob Goodlatte (R-VA):

Leak of White Paper confirms a palpable shift in policy by Obama administration. 

 

Goodlatte:

Drone strikes have increased six fold under Obama administration. Targeting foreign fighters and as well as American citizen.  

 

Goodlatte:

The American people need to know and understand the Obama administration’s justification for killing American citizens. 

 

Hon. John Conyers Jr. (D-MI), Ranking Member: 

I am not convinced by the administration’s legal rational for the targeting killing of any US citizen overseas. 4th and 5th amendments are at odds. 

 

Conyers: 

It is not clear that Congress intended to sanction force against a loosely defined enemy in a conflict with no discernible borders. 

 

Conyers;

We hope to convince the administration that this is not personal or political. All we are seeking is information to which we are entitled. 

 

Conyers:

I don’t think the Attorney General can refuse to come before our committee to discuss a subject that is within our jurisdiction. 

 

Mr. John B. Bellinger, III, Partner, Arnold & Porter LLP (advises sovereign governments on law and national security issues, served legal advisor for National Security Council under Condoleezza Rice):

The President’s authority derives from Authority to Use Military Force Act and constitution. AUMF needs to be updated, hasn’t been since 2001. 

 

Bellinger:

4th and 5th amendment rights are unclear. What amount of due process is due for American citizens outside of the US? Senior Al Qaeda offiicals are entitled to due process outside of the US. But the government has the right to target them outside of the US if they are deemed a threat. 

 

Bellinger: 

These processes should reside in the executive branch with appropriate notice to congress.

 

Bellinger:

The US must be transparent or it will lack credibility to other countries. Other countries are increasingly alarmed with large numbers of US drone strikes. US has a strong interest in demonstrating to allies that drone strikes are consistent with international law, or allies may stop sharing information/ stop support. 

 

Bellinger:

Obama admin should release names and backgrounds of some officials it targeted (after the fact). 

 

Mr. Robert Chesney, Charles I. Francis Professor in Law, Associate Dean for Academic Affairs, University of Texas School of Law (specializes in terrorism related prosecutions, national security, served on Obama’s task force):

Constitution does not require judicial process in narrow practice we are discussing here today. But limited judicial role is desirable. 

 

Chesney: 

Unlike the classic combat scenario (where a soldier shoots and kills someone), this scenario is a two stage process with very different questions and issues. Stage 1: is available intelligence there to indicate that the individual is a target? Stage 2: When targeted is located, is the person observed actually the nominated target, and do the circumstances allow for an attack? Stage 2 is akin to classic combat scenario. Judicial involvement in stage 1 would be much less intrusive than in stage 2. 

 

Chesney:

In stage 1 review: a judge can confirm or clarify laws that indicate who US can target, could affirm or not the White Paper view. Also, can decide whether information put forth about individual being targeted is sufficient and determine imminence. 

 

Mr. Benjamin Wittes, Senior Fellow, Brookings Institution (author of Long War, founder of blog, wrote for Washington Post):

Ability to kill it’s own citizens is one of the most awesome and terrifying powers a people can instill in it’s government. Equally terrifying, more terrifying, about a government unwilling to protect it’s people from ongoing threats of attacks here and overseas. 

 

Wittes: 

Obama admin has confronted a slippery slope. One side: government doing terrible, unlawful things, without consent. The other: government powerless to protect citizens from threats. US policy must avoid both slopes. 

 

Wittes:

Consider a domestic hostage situation- even law enforcement will use targeted killings without judicial pre-approval. No one say it’s unlawful. Case of Anwar al-awlaki is not different from this situation. 

 

Wittes:

Current law does not require judicial review for targeted killings of US citizens, can’t fault Attorney General Holder. 

 

Mr. Stephen I. Vladeck, Professor of Law, Associate Dean for Scholarship, Washington College of Law (specializes in constitutional law, national security law, constitution law, author of legal textbooks):

The question isn’t whether government has power to use this force, it’s when. 

 

Vladeck: 

This is a question courts are not completely incompetent at hearing (ex-ante judicial review of these cases). Would not be that hard to empower courts in hindsight to hear these cases. 

 

Vladeck: 

4700 causalities, people killed by American drone strikes. We’re not just talking about anwar al-awlaki. 

 

 

 

 

Chad Pergram

Senior Producer for Capitol Hill

FOX News

 

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