S. HRG. 113–876 

DRONE WARS: THE CONSTITUTIONAL 

AND COUNTERTERRORISM IMPLICATIONS 

OF TARGETED KILLING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

APRIL 23, 2013 

Serial No. J–113–16 

Printed for the use of the Committee on the Judiciary 

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DRONE WARS: THE CONSTITUTIONAL AND COUNTERTERRORISM 

IMPLICATIONS OF TARGETED KILLING 
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26–147 PDF 2018

S. HRG. 113–876 

DRONE WARS: THE CONSTITUTIONAL 

AND COUNTERTERRORISM IMPLICATIONS 

OF TARGETED KILLING 

HEARING 

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND HUMAN RIGHTS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

APRIL 23, 2013 

Serial No. J–113–16 

Printed for the use of the Committee on the Judiciary 

( 
(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

CHUCK GRASSLEY, Iowa, Ranking Member 

ORRIN G. HATCH, Utah 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TED CRUZ, Texas 

JEFF FLAKE, Arizona 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND HUMAN RIGHTS

DICK DURBIN, Illinois, Chairman 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

MAZIE HIRONO, Hawaii 

TED CRUZ, Texas, Ranking Member 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ORRIN G. HATCH, Utah 

JOSEPH ZOGBY, Democratic Chief Counsel 

SCOTT KELLER, Republican Chief Counsel 
(III) 

C O N T E N T S 

Tuesday, April 23, 2013, 4 P.M. 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cruz, Hon. Ted, a U.S. Senator from the State of Texas ..................................... 4 

Durbin, Hon. Dick, a U.S. Senator from the State of Illinois .............................. 1 

prepared statement .......................................................................................... 125 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa, 

prepared statement .......................................................................................... 129 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 

prepared statement .......................................................................................... 127 

WITNESSES 

Witness List ............................................................................................................. 47 

Al-Muslimi, Farea, Sana’a, Yemen ......................................................................... 15 

prepared statement .......................................................................................... 117 

Bergen, Peter, Director, National Security Studies Program, New America 

Foundation, Washington, DC .............................................................................. 13 

prepared statement .......................................................................................... 90 

Brooks, Rosa, Professor of Law, Georgetown University Law Center, Washington, DC ............................................................................................................. 7 

prepared statement .......................................................................................... 54 

Cartwright, James, General, U.S. Marine Corps, Retired, Washington, DC ...... 6 

prepared statement .......................................................................................... 48 

McSally, Martha, Colonel, U.S. Air Force, Retired, Tucson, Arizona .................. 11 

prepared statement .......................................................................................... 82 

Somin, Ilya, Professor of Law, George Mason University School of Law, 

Arlington, Virginia ............................................................................................... 9 

prepared statement .......................................................................................... 74 

QUESTIONS 

Questions submitted to Peter Bergen by Senator Franken ................................. 133 

Questions submitted to Prof. Rosa Brooks by Senator Durbin ............................ 131 

Questions submitted to Prof. Rosa Brooks by Senator Franken ......................... 134 

Questions submitted to Gen. James Cartwright by Senator Durbin .................. 132 

Questions submitted to Gen. James Cartwright by Senator Franken ................ 135 

Questions submitted to Col. Martha McSally by Senator Franken .................... 136 

ANSWERS 

Responses of Peter Bergen to questions submitted by Senator Franken ........... 137 

Responses of Prof. Rosa Brooks to questions submitted by Senator Durbin ...... 143 

Responses of Prof. Rosa Brooks to questions submitted by Senator Franken .... 147 

attachment ........................................................................................................ 155 

Responses of Gen. James Cartwright to questions submitted by Senator 

Durbin ................................................................................................................... 139 

Responses of Gen. James Cartwright to questions submitted by Senator 

Franken ................................................................................................................. 141 

Responses of Col. Martha McSally to questions submitted by Senator 

Franken ................................................................................................................. 191 
Page

IV 

MISCELLANEOUS SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union (ACLU) et al., Washington, DC, statement ..... 329 

Amnesty International USA, Washington, DC, statement .................................. 311 

Arab American Institute, Washington, DC, statement ........................................ 309 

Bill of Rights Defense Committee (BORDC), April 22, 2013, letter .................... 193 

Bolger, Leah, Commander, U.S. Navy, retired, statement .................................. 228 

Cavallaro, James L., Professor, Stanford Law School, statement ....................... 205 

Center for Civilians in Conflict, Washington, DC, statement .............................. 221 

Center for National Security Studies, Washington, DC, March 20, 2013, 

memorandum ........................................................................................................ 363 

Center for National Security Studies, Washington, DC, April 18, 2013, 

memorandum ........................................................................................................ 372 

Chicago Area Peace Action (CAPA), Evanston, Illinois, statement ..................... 201 

Cohn, Marjorie, Professor, San Diego, California, and Jeanne Mirer, Esq., 

New York, New York, statement ........................................................................ 240 

Columbia University School of Law, Human Rights Clinic, New York, New 

York, statement .................................................................................................... 215 

Conference of Major Superiors of Men, Silver Spring, Maryland, statement ..... 237 

Constitution Project, The, Washington, DC, statement ....................................... 346 

Council on American-Islamic Relations (CAIR), Washington, DC, statement ... 196 

Fields, A. Belden, Professor Emeritus, Urbana, Illinois, statement ................... 236 

Friends Committee on National Legislation (FCNL), April 16, 2013, letter ...... 245 

Government Accountability Project (GAP), Washington, DC, statement ........... 248 

Human Rights First, Washington, DC, statement ................................................ 274 

Human Rights Watch, Washington DC, statement .............................................. 267 

Interfaith Communities United for Justice and Peace (ICUJP), Los Angeles, 

California, statement ........................................................................................... 195 

Madden, Mike, and Coleen Rowley, et al., April 16, 2013, letter ........................ 320 

Magness, Rt. Rev. James, Bishop Suffragan, Armed Services and Federal 

Ministries, The Episocpal Church, Washington, DC, statement ...................... 299 

Mothana, Ibrahim, Yemen resident, statement .................................................... 356 

Muslim Public Affairs Council (MPAC), Washington DC, statement ................. 284 

National Organization for Defending Rights and Freedoms (HOOD) et al., 

statement .............................................................................................................. 256 

O’Connell, Mary Ellen, statement .......................................................................... 337 

Paul, Hon. Rand, a U.S. Senator from the State of Kentucky, statement .......... 230 

Rafik Hariri Center for the Middle East at the Atlantic Council and the 

Project on Middle East Democracy (POMED), Washington, DC, statement ... 288 

Rights Working Group (RWG), Washington DC, statement ................................ 304 

Rutherford Institute, The, Charlottesville, Virginia, statement .......................... 374 

Sojourners, Washington DC, statement ................................................................. 233 

Wolff, Stefan, M.Phil., Ph.D., Professor of International Security, University 

of Birmingham, England, United Kingdom, statement .................................... 290 

Wright, Mary A., Honolulu, Hawaii, April 20, 2013, letter .................................. 282 
(1) 

DRONE WARS: THE CONSTITUTIONAL 

AND COUNTERTERRORISM IMPLICATIONS 

OF TARGETED KILLING 

TUESDAY, APRIL 23, 2013 

UNITED STATES SENATE

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS

AND HUMAN RIGHTS

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Subcommittee met, pursuant to notice, at 4 p.m., in Room 

SH–216, Hart Senate Office Building, Hon. Dick Durbin, Chairman 

of the Subcommittee, presiding. 

Present: Senators Franken, Blumenthal, Grassley, Graham, Lee 

and Cruz. 

OPENING STATEMENT OF HON. DICK DURBIN, 

A U.S. SENATOR FROM THE STATE OF ILLINOIS 

Chairman DURBIN. This hearing of the Subcommittee on the 

Constitution, Civil Rights and Human Rights will come to order. 

Today’s hearing is entitled, ‘‘Drone Wars: The Constitutional and 

Counterterrorism Implications of Targeted Killing.’’ Senator Cruz is 

on his way from another hearing, so I wanted to start on time, but 

certainly understand there are just conflicting schedules that we 

face here. 

This is the first ever public hearing in the Senate to address the 

use of drones in targeted killing. We are pleased to have such a 

large audience for today’s hearing. It demonstrates the importance 

and timeliness of this issue. Thank you to those that are here in 

person, those watching live on C-SPAN, and those following the 

hearing on Twitter and Facebook using the hashtag dronewars. 

At the outset I want to note that the rules of the Senate prohibit 

outbursts, clapping, or demonstrations of any kind. Please be mindful of those rules as we conduct this hearing. 

There was so much interest in today’s hearing, we also have another larger room to accommodate any overflow crowd. If anyone 

could not get a seat in the hearing room, they can go to Room 226 

in Dirksen. 

At the outset, I want to thank Senators Leahy and Grassley, 

Chairman and Ranking Member of the Senate Judiciary Committee, for pressing the Justice Department to provide the Committee with the Justice Department’s memos on targeted killing of 

Americans. 
2 

The Department recently provided these memos to the Committee. I have had a personal opportunity to review them in advance of today’s hearing. As we will discuss today, this was a positive step, but I still believe the Justice Department should provide 

the Committee with its memos on the targeted killing of non-Americans as well and make public the legal analysis contained in those 

memos without revealing any intelligence sources or methods. 

I would like to take a moment to also acknowledge my colleague 

and friend, Congresswoman Barbara Lee of California who has 

joined us today. We spoke recently on the phone about drones and 

I am aware of her great interest in this issue. Thank you, Congresswoman Lee, for being here. 

I also asked unanimous consent to include in the record a statement from Senator Rand Paul of Kentucky. During the filibuster 

of John Brennan’s nomination on the Senate floor, I invited Senator Paul to testify at today’s hearing. He could not make it because of a conflict, but he has submitted a written statement and 

without objection, it will be added to the record. 

[The prepared statement of Senator Paul appears as a submission for the record.] 

Chairman DURBIN. I will begin by providing some opening remarks and then turn to Senator Cruz, thank you for joining us, for 

his opening statement before our witnesses. 

The Constitution bestows upon the President of the United 

States the unique responsibility and title of Commander in Chief. 

With that title comes the responsibility to protect and defend 

America from foreign and domestic enemies. To accomplish this 

goal, the President has a military that is the best in the world. 

Best trained, best equipped, and most effective. 

While the tactics and tools used by our military are ever-evolving, one thing must remain constant. Ours is a democratic society 

where the rule of law prevails. The President must exercise his authority as Commander in Chief within the framework established 

by the Constitution and the laws passed by Congress. Even as 

President Obama commands a military with the most sophisticated 

weapons known to man, including weaponized drones and targeted 

killing operations, his authority is grounded in words written more 

than 200 years ago in our Constitution. 

At times over the course of our history, the rule of law has been 

abused during times of war. When this occurs, it challenges America’s moral authority and standing in the world. This potential for 

abuse is a stark reminder of Congress’ responsibility to authorize 

the use of force only in narrow circumstances and to conduct vigorous oversight once authorized. 

The heat of battle and the instinct to defend can create moral, 

legal and constitutional challenges. We can all recall the controversy surrounding the use of torture in a previous administration. Torture, though clearly illegal under both domestic and international law, was rationalized at that time by some as appropriate 

in our war against terrorism. 

Today’s subject, the targeted killing of combatants, in contrast to 

torture, has always been part of warfare in areas of active hostility. 

In recent years, however, it has been employed more frequently 

away from the traditional battlefield. The use of drones has in 
3 

stark terms made targeted killing more efficient and less costly in 

terms of American blood and treasure. 

There are, however, long-term consequences, especially when 

these air strikes kill innocent civilians. That is why many in the 

national security community are concerned that we may undermine 

our counterterrorism efforts if we do not carefully measure the benefits and costs of targeted killing. 

This administration has not claimed the authority to override 

laws like the criminal prohibition on torture. Instead, the administration has attempted to ground its use of drones in a statute, the 

2001 Congressional Authorization to Use Military Force. Officials 

like Attorney General Eric Holder and CIA Director John Brennan 

have acknowledged the strikes and delivered speeches explaining 

the administration’s legal and policy positions. 

In my view, more transparency is needed to maintain the support of the American people and our international community. For 

example, the administration should provide more information 

about its analysis of its legal authority to engage in targeted killing 

and the internal checks and balances involved in U.S. drone 

strikes. 

The administration must work with Congress to address a number of serious, challenging questions, some of which are being hotly 

debated even as we meet. What is the constitutional and statutory 

justification for targeted killing? What due process protections extend to an American citizen overseas before he is targeted and 

killed by a drone strike? What are the legal limits on the battlefield 

in the conflict with Al-Qaeda? Is it legal to use drones not just in 

war zones like Afghanistan, but also to target terrorist suspects in 

places where the U.S. is not involved in active combat such as Somalia and Yemen? 

What is the legal definition of a combatant in the conflict with 

Al-Qaeda and who qualifies as associated forces under the 2001 

AUMF? Should the U.S. lead an effort to create an international 

legal regime governing the use of drones? What moral and legal responsibility does the United States have to acknowledge its role in 

targeted killing and make amends for inadvertent destruction and 

loss of life, particularly where missiles kill or injure innocent people? 

These are some of the questions that will be explored at this very 

serious hearing. Speaking recently about the use of drones, President Obama said, ‘‘One of the things we have got to do is put a 

legal architecture in place and we need congressional help in order 

to do that, to make sure that not only am I reigned in, but any 

President is reigned in.’’ 

Now, I agree with the President on the need for a clear, legitimate, and transparent legal framework for targeted killing. Today 

is the first step in that process. I do want to note for the record 

my disappointment that the administration declined to provide a 

witness to testify at today’s hearings. I hope that in future hearings we will have an opportunity to work with the administration 

more closely. I will now recognize my colleague, Senator Cruz, the 

Ranking Member of this Subcommittee. 
4 

OPENING STATEMENT OF HON. TED CRUZ, 

A U.S. SENATOR FROM THE STATE OF TEXAS 

Senator CRUZ. Thank you, Mr. Chairman. I would like to begin 

by thanking the Chairman for holding this hearing on this very important topic. I would like to thank each of the witnesses for joining us today, and I would like to echo the concern that the Chairman raised and the disappointment that the Obama administration 

declined to send a witness, particularly after this hearing was delayed for 1 week in order to accommodate the administration’s 

schedule. I am hopeful that they will provide witnesses at subsequent hearings. 

Drones are a technology. Like any technology, they can be used 

for good purposes or for ill. The real scope I believe of this hearing, 

and of the concern, is on the scope of Federal power, and in particular the scope of Federal power to engage in targeted killings. 

The Obama administration has for some time advocated for a 

drastic expansion of Federal power in many, many contexts. Indeed, on April 9th, I released a report that detailed six different 

instances in which the Obama administration has gone before the 

U.S. Supreme Court advocating a radically broad view of Federal 

power and six different times the U.S. Supreme Court has unanimously rejected the administration’s view of Federal power and has 

instead concluded unanimously that Federal power is more circumscribed than this administration recognizes. 

Indeed, Federal overreach is what was at the heart of the March 

6th filibuster led by Senator Rand Paul which I was quite proud 

to participate in a significant manner. That day began with a hearing before this full Committee where Attorney General Holder testified. At the time, I took the opportunity to ask Attorney General 

Holder if he believed the Constitution allowed the U.S. Government 

to use a drone to kill a U.S. citizen on U.S. soil if that individual 

did not pose an imminent threat. 

The Attorney General declined to answer my question as initially 

posed and instead he responded that he did not believe it would be 

appropriate to use a drone to do so. He said, and I paraphrase 

here, that we should rest confident that in their discretion, the administration would not choose to do so. 

My response of course was that the question was not a question 

about propriety. It was a question addressed to the chief legal officer of the United States asking whether the United States Department of Justice had a legal position on whether the Constitution 

allows the Federal Government to kill a U.S. citizen on U.S. soil 

if that individual does not pose an imminent threat. 

Three times I posed that question to General Holder, three times 

he declined to answer and simply stated it would be appropriate, 

but he would not say whether or not it would be constitutional. 

Finally after the third time, he went back and said that when 

he said inappropriate, what he meant was unconstitutional. That 

exchange served later as the predicate for the 13-hour filibuster 

that occurred as first Senator Rand Paul and then one Senator 

after another after another came to the floor of the Senate to insist 

on basic constitutional limits on the authority of the Federal Government. 
5 

Let me be clear. The authority of the Federal Government and 

the protection of the Constitution should not be a partisan matter. 

The statement from the Attorney General that we should trust the 

Federal Government to do what is appropriate, in my view the Bill 

of Rights is predicated on the notion that we do not trust those in 

power, be they Democrats or Republicans, that the Bill of Rights 

exists to protect our liberties regardless of who happens to be in 

power. 

That 13-hour filibuster did something remarkable. During the 

course of it, Americans became fixated by C-SPAN. Now, I would 

suggest fixated by C-SPAN is not a phrase that exists ordinarily 

in the English language. But we saw thousands upon thousands of 

Americans go on Twitter, go on Facebook, begin speaking out for 

liberty, for limiting the authority of the Federal Government to 

take the life of U.S. citizens on U.S. soil. 

As a consequence of standing for principle, we saw the next day 

the administration do what it had declined to do for many weeks, 

which is acknowledge in writing that the Constitution does not 

allow a U.S. citizen to be killed in those circumstances. In my view, 

we need greater protections than simply a letter from the administration and I am hopeful that Congress will pass legislation making very clear the limits on Federal power and I hope that this 

panel of witnesses will share your wisdom and expertise on the appropriate boundaries under the Constitution and the appropriate 

statutory boundaries that Congress should consider. Thank you. 

Chairman DURBIN. Thank you, Senator Cruz. We are going to 

turn to our panel of witnesses. At the outset I want to thank Senator Cruz and his staff for working with me and my staff to develop 

a witness list for today’s hearing. You will hear a wide range of different points of view in the course of the testimony. 

Now in keeping with the practice of the Committee, will the witnesses please rise and raise their right hands to be sworn? Do you 

swear or affirm the testimony you are about to give before the Subcommittee will be the truth, the whole truth and nothing but the 

truth so help you God? Thank you. 

Let the record reflect that the witnesses, all six, have answered 

in the affirmative. 

The first witness will be retired General James Cartwright. General Cartwright currently serves as the Harold Brown Chair in Defense Policy Studies at the Center for Strategic and International 

Studies. General Cartwright retired from active duty on September 

1st, 2011, after a 40-year career in the U.S. Marine Corps. 

Among many other positions, he served under two Presidents as 

Vice Chairman of the Joint Chiefs of Staff, the Nation’s second 

highest military officer. He was also Commander of the U.S. Strategic Command. General Cartwright studied at the University of 

Iowa, the Air Command and Staff College, the Naval War College, 

and the Massachusetts Institute of Technology, and I note with 

pride he is a native of Rockford, Illinois. 

General Cartwright, thank you for your service to our country 

and thank you for joining us today. Your written statement will be 

entered into the record and now your opportunity to testify, please. 
6 

STATEMENT OF GENERAL JAMES CARTWRIGHT, 

U.S. MARINE CORPS, RETIRED, WASHINGTON, DC 

General CARTWRIGHT. Thank you, Senator Durbin and Senator 

Cruz and other distinguished Members. It is an honor and a pleasure to testify before this Committee. Thank you for inviting me. 

In the time allotted, I would like to address three questions central to the topic of this hearing. The first, Are we to continue with 

policies of the global war on terror as they relate to targeted 

killings and the use of armed, remotely piloted aircraft? That is, 

number one, defeat terrorists and demolish their organizations. 

Number two, identify, locate, and demolish terrorists along with 

their organizations. Three, deny sponsorship, support, and sanctuary to terrorists. Four, diminish the underlying conditions that 

terrorists seek to exploit. Fifth, defend U.S. citizens and interests 

at home and abroad under both the domestic and international law 

regarding national self defense. I support this mission and policy. 

Second, under what authority and accountability framework, 

when operating outside the United States, are we to operate? Intelligence, often referred to as Title 50 in covert activities, military, 

often referred to as Title 10 in clandestine activities, law enforcement, usually on the outside by the FBI, or some other framework. 

Is the framework robust enough in this mission area to provide 

appropriate direction, oversight, and accountability? The DOD 

framework requires written orders from the National Command 

Authority, Secretary of Defense, and the President to each person 

in the chain of operation and accountability. Who, what, when, 

where, what capabilities, what restraints and what types of collateral damage, what to do if there is collateral damage, required 

metrics and after action reports, et cetera. 

This direction is provided in the mission statement and objectives, warning orders to begin detailed planning, preparation to deploy orders to move to a point of embarkation, deployment orders 

to move to the objective and execute orders to conduct the operation. 

I could support consolidation of the armed, remotely piloted aircraft under DOD, a question that was asked of me, only if there 

are fundamental changes in how DOD trains and equips for this 

mission. I believe each of the authority and the accountability constructs, intel, military, and Justice, should remain available to the 

President, adjusted to ensure that they are effective for this particular mission. 

Last, under what conditions are armed, remotely piloted aircraft 

an appropriate capability to carry out this mission? In this campaign, the U.S. has employed bombers, attack aircraft, cruise missiles, and special operation forces in various scenarios. Improvements in technology and emergence of armed, remotely piloted aircraft have provided a significant improvement in our ability to find, 

fix, and target in this mission area. They are not perfect, they can 

be improved. 

No other capability we have today is better suited though to conduct this mission under the guidelines provided. Improvements in 

sensors and weapons that increase better identification of authorized targets and weapons that reduce the potential for collateral 

damage should be pursued. 
7 

Finally, and in summary, my recommendations to the Committee. One, review and address as appropriate the framework for 

direction, oversight, and accountability, and I have a long piece on 

this inside of my written testimony. 

If it is to be a covert mission, it should be conducted by the intelligence community. If it is to be a clandestine mission, it should be 

conducted by the military and the train and equip authorities will 

need to be adjusted. Improve the remotely piloted aircraft and 

weapon systems used in this mission area to better align their capabilities for the desired effect. 

I am concerned we may have ceded some of our moral high 

ground in this endeavor. While I continue to support the objectives 

of this campaign, I commend to the Committee for its consideration 

the recommendations in my written and oral statements. Thank 

you, Mr. Chairman. 

[The prepared statement of General Cartwright appears as a 

submission for the record.] 

Chairman DURBIN. Thank you very much, General Cartwright. 

Our next witness is Professor Rosa Brooks of Georgetown University Law Center. 

In addition to teaching law, Professor Brooks is a Senior Fellow 

at the New America Foundation and a weekly columnist on national security issues for Foreign Policy Magazine. Previously Professor Brooks served as counselor to the Under Secretary of Defense for Policy where she founded the Defense Department’s Office 

for Rule of Law and International Humanitarian Policy. 

She is a graduate of Harvard University, Oxford University, 

where she was a Marshall Scholar, and Yale Law School. 

Professor Brooks, the floor is yours. 

STATEMENT OF ROSA BROOKS, PROFESSOR OF LAW, 

GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC 

Professor BROOKS. Thank you, Senator. I submitted 20 pages of 

written testimony, but much like C-SPAN, people do not usually 

refer to what law professors write as riveting. So I am going to condense that 20 pages into 5 minutes here and focus almost exclusively on the broader rule of law issues that I believe are raised 

not by drones as such, but by U.S. targeted killing policy. 

In the context of the traditional battlefield, drones do not present 

any new legal or rule of law issues. It is in the context of places 

such as Somalia, Yemen, et cetera, outside of traditional so-called 

hot battlefields that we were suddenly presented with significant 

problems, to the point in which the use of U.S. targeted killing policy as currently understood appears to both challenge the legal 

frameworks that exist and potentially dangerously undermine the 

rule of law. This is not because of some conspiracy or lack of concern, but because we are faced with a situation where the fit between the law and the legal frameworks we have and the situation 

on the ground is not very good anymore. 

The idea of the rule of law, as you and Senator Cruz both said, 

is to protect people from the arbitrary exercise of government 

power. In ordinary circumstances we all know that that means the 

government cannot come and take your property or your liberty or 

kill you without some sort of due process. Similarly, we believe that 
8 

the government cannot use force to kill someone in the borders of 

another state without that state’s consent and without appropriate 

judicial process. 

Obviously there are situations where ordinary rules do not apply, 

such as in wars. In the context of wars or armed conflicts, the law 

of armed conflict tells us that it is acceptable to kill, whether by 

slingshot, gun, or drone. 

The problem here is that we have two different bodies of law 

which have radically different rules concerning due process and the 

use of force by the state. In the law we call this the lex specialis 

and the lex generalis. Lex specialis is a fancy Latin term that refers to special law applying only in special circumstances, in this 

case armed conflicts, law of armed conflict. Lex generalis is the 

general law that applies in general circumstances, ordinary peace 

time. 

It is not necessarily a problem to have two radically different 

sets of rules that apply in different situations. It is not necessarily 

a problem as long as we are pretty clear on how we know the difference between when one set of rules applies and when the other 

set of rules applies. 

On the traditional battlefield, it is pretty clear. You have uniformed soldiers, you have open acknowledgment of the armed conflict, you can have objective observers such as journalists saying 

yes, it looks like there is a large scale armed conflict here. 

On the other hand, once we get off that traditional battlefield, 

when we are looking at an inchoate protean enemy such as geographically disbursed globalized terrorist organizations, it becomes 

very, very hard to say, ‘‘here is where the armed conflict is, here 

is where the armed conflict is not; here is who is a combatant, here 

is who is not a combatant.’’ All of those legal frameworks just start 

breaking down. 

The problem that we now have is that nobody outside a very 

small group within the U.S. executive branch knows how we are 

making those decisions about who is a combatant, where is the 

war, et cetera. It is not like World War II. Also, the information 

and the process are classified, so it is just very, very hard to get 

a grip on what the basis is for making any decisions. 

That means that all of our core rule of law questions in which 

we figure out how we even know what body of law applies are unanswered. What is the criteria for determining who is a combatant 

or who is an affiliate of Al-Qaeda? What does that mean? Where 

is the war? Does law of armed conflict travel anywhere a combatant travels, making it applicable anywhere? What about sovereignty issues? Does it matter if the state does not consent? Who 

decides if a state is unwilling or unable to take appropriate action? 

Who in the U.S. executive branch makes the decisions? What is 

the chain of command? What are the mechanisms for ensuring that 

we prevent abuses? 

This is a deep problem, as I said. I do not think this is a problem 

of lack of good faith on the part of officials. This is just a problem 

when we have a concept like armed conflict: If it gets squishy 

enough that we can use that same term to talk about World War 

II and what is going on right now with regard to Al-Qaeda and its 
9 

affiliate, frankly that is a term that is not doing a lot of useful 

work anymore. 

What it means in practice is that we just lose any principle 

means of categorizing a targeted killing. Should we call them lawful targeting of combatants? Lawful under the law of war? No problem, if that is the case. Or should we call them murder, extra-judicial killings, as many human rights groups have asserted? We do 

not have a principle basis for deciding anymore. 

I also worry very much about the precedent we are setting for 

other less scrupulous states such as Russia, China, et cetera. I can 

talk about all of this in much more detail and would be happy to 

during the question period. I think what it comes down to, Senator 

Durbin and Senator Cruz, is that right now we have the executive 

branch making a claim that it has the right to kill anyone anywhere on earth at any time for secret reasons based on secret evidence in a secret process undertaken by unidentified officials. 

That frightens me. I do not doubt their good faith, but that is not 

the rule of law as we know it. In my statement submitted for the 

record, I do suggest a number of reforms that might improve our 

ability to ensure oversight and accountability. I do not have time 

to discuss them now, but I very much hope that we will address 

those issues later. 

I will just leave you with this final thought, which is that I believe that it is absolutely possible to make a plausible, legal argument justifying each and every U.S. drone strike. But to me, this 

just suggests that we are working with a set of legal concepts that 

have outlived their usefulness. 

If law exists to restrain untrammeled power, then the real question for us is not whether U.S. targeted killings are all legal, the 

real question is this: Do we want to live in a world in which the 

U.S. Government’s justification for killing is so infinitely malleable? 

Thank you very much. 

[The prepared statement of Professor Brooks appears as a submission for the record.] 

Chairman DURBIN. Thank you, Professor Brooks. 

Professor Ilya Somin, did I pronounce that correctly? Somin, is 

at the George Mason Law School. Make sure your microphone is 

on, you will see a red light if it is. 

Professor Somin’s research focuses on constitutional law, property law, and popular political participation. He is co-editor of the 

Supreme Court Economic Review. Previously, he served as the 

John Olin Fellow in Law at the Northwestern University Law 

School. He earned a B.A. at Amherst College, an M.A. in Political 

Science from Harvard, and a J.D. from Yale Law School. 

Please proceed with your testimony. 

STATEMENT OF ILYA SOMIN, PROFESSOR OF LAW, GEORGE 

MASON UNIVERSITY SCHOOL OF LAW, ARLINGTON, VIRGINIA 

Professor SOMIN. I would like to start by thanking Chairman 

Durbin and Senator Cruz and the other Members of the Committee 

for your interest in this important issue. In my testimony I would 

like to focus on two key points. 
10 

First, that the use of drones for targeted killing in the war on 

terror is not in and of itself illegal or immoral. But second, that 

there are serious legal and policy issues that arise from the problem of ensuring that we are actually choosing the right targets and 

confining these drone strikes to people who really are terrorist 

leaders or at least terrorists of some kind as opposed to innocent 

people unduly caught in the crossfire. 

By its very nature, in a war, targeted killing in my view is a legitimate tactic and the current conflict between the United States 

and Al-Qaeda and its affiliates is a war authorized by the Authorization for the Use of Military Force enacted in 2001. At various 

times, the President, Congress, and the Supreme Court have all 

recognized that the current conflict qualifies as a war. Certainly in 

many past wars, combatants have legitimately resorted to targeted 

killing. For example, during World War II, the United States targeted Japanese Admiral Yamamoto and virtually everybody agrees 

that that was an entirely legitimate military operation. 

If it is legal and morally permissible to use targeted killing 

against uniformed military officers, surely the same applies to terrorists and terrorist leaders. It would be perverse if terrorists obtained greater immunity from targeting than that enjoyed by uniformed military officers who at least pretend to obey the laws of 

war whereas the terrorists clearly do not. 

In addition, I think it is not inherently illegal or problematic to 

target American citizens in such situations so long as those American citizens are also combatants in the relevant war. The Supreme 

Court in the 2004 Hamdi decision and at other times has recognized that sometimes U.S. citizens do qualify as enemy combatants. 

Although the use of targeted killing, whether by drones or with 

other weapons is not inherently illegal or unethical, the problem of 

choosing targets does raise some very serious issues. In the war on 

terror, we face an adversary that generally does not wear uniforms 

and also often does not have a clear command structure. Therefore 

it is often difficult to tell who is a legitimate target and who is not. 

This state of affairs raises two possible problems. 

First, sometimes we might inadvertently or recklessly target an 

innocent person. Second and worse, the possibility exists that the 

government could deliberately target someone who is innocent because perhaps they are a critic of the government or they otherwise 

attract the ire of leading government officials. 

This is particularly problematic from a constitutional point of 

view if there is abusive targeting of an American citizen. Doing 

that would violate the due process clause of the Fifth Amendment 

which prevents the government from depriving people of life, liberty or property without due process of law. 

Two aspects of current policy raise serious questions about 

whether we are doing enough to ensure that we are choosing only 

legitimate targets. One is the sheer number of targeted killings 

over the last several years, which includes hundreds or even thousands of people. Studies by various people including Mr. Bergen, 

who will testify later, suggest that only a small percentage of those 

individuals who are killed actually were senior Al-Qaeda leaders. 

Second, the Department of Justice memo released a couple of 

months ago states that it is permissible to target American citizens 
11 

who are senior operational leaders of Al-Qaeda and who pose an 

imminent threat, but it does not say anything about how much evidence we need to have before we can determine that someone really is a senior Al-Qaeda leader or even which officials get to make 

that decision. 

In my written testimony, I discuss in more detail some possible 

institutional solutions to these problems. One that I think deserves 

serious consideration is the establishment of an independent court 

to review potential targeted killing objectives and to ensure that 

they are backed by sufficient evidence. It could perhaps be similar 

to the court currently used to authorize surveillance and wiretapping within the United States. 

Whatever solution we opt for, it is probably not possible to have 

a perfect system that avoids all mistakes. What we should aim for 

is a system that on the one hand permits legitimate military operations to go forward, but also provides a check on what might otherwise be the uncontrolled and arbitrary power of the executive to 

order killings, particularly those targeted at U.S. citizens. 

I thank the Subcommittee and I very much look forward to your 

questions. 

Thank you very much. 

[The prepared statement of Professor Somin appears as a submission for the record.] 

Chairman DURBIN. Thank you, Professor. 

We will now hear from Colonel Martha McSally. She served as 

an officer in the U.S. Air Force for 22 years. She was the first 

woman in U.S. history to fly a fighter jet and command a fighter 

squadron in combat. She earned a bronze star among many other 

honors. 

Colonel McSally served as the Chief of Current Operations in Africa where she helped build Africom’s targeting team. She was assigned to the Saudi Arabia Air Operations Center when the predator drone was first used for reconnaissance and air strikes. 

Colonel McSally also served as a Legislative Fellow with our 

former colleague, Senator John Kyl. Colonel McSally holds degrees 

from the Air Force Academy, the Kennedy School of Government 

at Harvard, and the Air War College. She was added to the panel 

at the request of our friend and colleague, Senator Lindsey 

Graham. 

Colonel McSally, thank you for serving our country and the floor 

is yours. 

STATEMENT OF COLONEL MARTHA McSALLY, 

U.S. AIR FORCE, RETIRED, TUCSON, ARIZONA 

Colonel MCSALLY. Thank you, Mr. Chairman, Ranking Member 

Cruz, and the distinguished Members of the Subcommittee. 

I come to you today from an operational point of view and I will 

speak in generalities at the unclassified level from my military experience related to the use of remotely piloted aircraft for targeted 

killings. 

I use the term remotely piloted aircraft, which is my first point, 

instead of drones because I think that is actually part of the challenge. There is an information operations campaign by Al-Qaeda 

going on against us and the word drone actually has a connotation 
12 

that we have got these autonomous vehicles flying around and 

striking at will without a whole lot of scrutiny and oversight to 

them. 

The military does use the term remotely piloted aircraft to explain and to try and paint the picture that it actually takes about 

200 individuals to keep one of these aircraft airborne for a 24-hour 

orbit. Those 200 individuals include the operators, the intelligence 

personnel, the maintenance personnel, the equipment people, the 

lawyers are also part of the process. You have literally hundreds 

of other personnel that are involved in the process on the military 

side when you are actually conducting one of these operations. So 

I will be using the term RPA throughout my testimony, and that 

certainly is one of the points to make. 

In my written testimony, I explain that I think this issue is very 

important and there are very legitimate questions that need to be 

asked for the oversight roles that we have, as when we are choosing if it is legal to use lethal force for targeted killings and if it 

is a good counterterrorism strategy to use that force. 

Those questions are legitimate and need to be asked and that 

oversight has got to be tightened up. There has been way too much, 

I think, vagueness and lack of clarity, even in the information that 

has come out of the chain of command related to their legal argument and their strategy on that matter. 

I believe it should be separated though into three questions. Is 

it legal? Is it good strategy? Then the third question is if we have 

decided that we want to use lethal force, because it is legal and 

good strategy in the counterterrorism arena, then what platform 

should we use? 

So I will be focusing on discussing that platform and then the 

process that we go through. It would be surprising to you, perhaps, 

that a pilot would be advocating for the use of remotely piloted aircraft in order to conduct operations. But in the course of my 22 

years in the military, I have extensively worked with remotely piloted aircraft for a variety of different means, and when we are on 

the regular battlefield, you often have a Lieutenant Pilot and an 

Airman First Class on the ground making decisions to use lethal 

force with potential strategic consequences. 

If they hit the wrong target and there is collateral damage, then 

there is a great level of potential issues related to that wrong decision. 

When you are talking about the use of remotely piloted aircraft, 

you have what I believe is unprecedented level of persistence, oversight, and precision if you are choosing to use that as a platform. 

Your other choices are fighter aircraft, cruise missiles, SEALS, artillery, and other means of using lethal force. But when you are 

using remotely piloted aircraft, oftentimes because the number of 

issues that have to come together and line up to include positive 

identification, geographic location, collateral damage assessment, 

friendly force deconfliction, and other communications that need to 

happen, it is often not practical because the targets are fleeting to 

use any of these other assets. 

As an example, you would not want to have to wait and then 

launch fighters from a certain base, air refueling tankers, diplomatic clearances, all while these stars are all lining up in a very 
13 

fleeting moment that could basically those conditions could not be 

met in the next moment. So if you have a remotely piloted aircraft 

overhead, as those conditions are lining up, the process actually 

has a great deal of extraordinary scrutiny. 

You have the chain of command watching, you have the intelligent analysts watching, you actually have the lawyers sitting side 

by side with you and you can wait until the moment that you have 

identified the positive identification and all the criteria has been 

met and you can also abort at the last minute. If you launch a 

cruise missile for a lethal strike, there is usually 30 minutes of 

planning, 30 minutes time of flight and then oftentimes you cannot 

divert that missile as an example. 

So a remotely piloted aircraft actually gives us the highest level 

of scrutiny and oversight and persistence and precision if you are 

deciding to have a lethal strike. I look forward to the questions and 

the discussion on this matter and also at the unclassified level the 

process that we go through in the military to achieve the different 

criteria before we are actually cleared for those strikes. 

[The prepared statement of Colonel McSally appears as a submission for the record.] 

Chairman DURBIN. Thank you, Colonel McSally. 

Our next witness is Peter Bergen. Mr. Bergen is Director of the 

National Security Studies Program with the New America Foundation. He is a best-selling author and widely publicized journalist. 

Mr. Bergen is CNN’s National Security Analyst and a Fellow at 

Fordham University Center on National Security. He has worked 

as an adjunct lecturer at Harvard’s Kennedy School of Government 

and as an adjunct professor at the Johns Hopkins University 

School of Advanced International Studies. He holds an M.A. from 

New College at Oxford University. 

Mr. Bergen, please proceed. 

STATEMENT OF PETER BERGEN, DIRECTOR, NATIONAL SECURITY STUDIES PROGRAM, NEW AMERICA FOUNDATION, 

WASHINGTON, DC 

Mr. BERGEN. Thank you, Mr. Chairman and Senator Cruz and 

the other Members of the Committee for the privilege of testifying. 

We at the New America Foundation basically are collecting data 

on CIA drone strikes for the past 3 or 4 years. I am not a lawyer, 

so my presentation will really be about what has been happening 

in the drone program. 

Here are some of the main points. Under President Obama, there 

has been 307 drone strikes in Pakistan. That is six times more 

than President Bush did in his two terms in office. The total number of deaths in Pakistan we calculate somewhere between 2,000 

to 3,300 roughly. 

The drone program in Pakistan has changed. In 2010 there were 

122 drone strikes, over time it has decreased. That is for a series 

of reasons. There has been a significant pushback from the State 

Department about, are we losing the wider war in Pakistan in a 

sense? If the price of a successful drone program is angering 180 

million Pakistanis, one of the largest countries in the world, a 

country with nuclear weapons, that is quite a large price to pay. 
14 

I think that there has been a more discriminating program in 

Pakistan as a result of this discussion. The CIA still has the ability 

to more or less override State Department objections, but I think 

the larger discussion has been won by the State Department. Also 

there is an increasing Congressional oversight, there is more public 

discussion as there is in this forum. Supreme Court Justice Brandeis a long time ago said sunlight is the best disinfectant and I am 

really thankful that we are having this public discussion. 

There are a whole series of reasons the CIA drone base in 

Balochistan was closed. There are probably fewer targets in the 

tribal regions to actually kill, and so you have seen a decline in 

Pakistan. At the same time, and we will hear from the witness to 

my left in a minute about the drone program in Yemen. 

There was only one drone strike in Yemen under President 

George W. Bush, there were 46 last year under President Obama. 

We calculate there were somewhere between 467 and 674 

casualities. All but six of those took place under President Obama. 

Who are the targets? As Professor Somin indicated, militant 

leaders are not really being killed in any great number. We calculate that only 2 percent of the total number of casualties are actually people you could really term leaders. 

That is an interesting development. What was initially started, 

I think, as a program that would target high level members of AlQaeda has in a sense devolved, particularly in Pakistan, into a 

kind of counterinsurgency air force and you can say that is a good 

thing or a bad thing, but it is a fact that that is happening. 

Where are the targets in Pakistan? They are overwhelmingly in 

North Waziristan for obvious reasons, that is where Al-Qaeda and 

the Haqqani Network are basically located. 

What of the civilian casualty rate? We have found that it has declined very significantly over time. Initially in 2006, it was almost 

100 percent. Now today confirmed civilian casualties we calculate 

about 2 percent. We also added an unknown category of 9 percent 

because sometimes it is not clear if somebody is a civilian or a militant. After all, everybody dresses the same, and somebody that is 

referred to in a press account as a tribesman could be either a 

Taliban or a civilian. 

We are finding a very significant decrease in the number of civilian casualties. There are all sorts of reasons for that. I think one 

is drones are persistent, as Colonel McSally pointed out. There are 

smaller payloads, there is better intelligence. President Obama is 

taking a more direct role in adjudicating potential strikes where 

there might be a civilian casualty. So we have seen a very strong 

drop, but there are still civilian casualties. 

We are not the only group that looks at this issue. There is the 

Long War Journal and London-based Bureau for Investigative 

Journalism, but we are all finding roughly the same thing, that the 

civilian casualty rate in 2012 is quite low. 

Ben Emmerson, who is a United Nations Special Rapporteur on 

this issue, went to Pakistan recently and had a very interesting 

discussion with Pakistani lawmakers and officials. They said to 

him that there were 400 civilian casualties in Pakistan, which is 

pretty close to the number that we actually think is correct, and 

this is the first sort of official acknowledgment in Pakistan, at least 
15 

on background that the civilian casualty rate is much lower than 

is presented in the Pakistani press. 

What impact is this having on Al-Qaeda and the Taliban? The 

best witness for the impact on Al-Qaeda is Osama Bin Laden himself. In the documents recovered in Abbottabad, he was very concerned about the drone program. With the amount of damage it 

was inflicting on his group, he was suggesting that Al-Qaeda 

should decamp to Kunar in Eastern Afghanistan which is heavily 

forested and mountainous and it would be hard for American 

drones to see what is going on. 

He even suggested his son should move to Qatar, the richest and 

one of the safest countries in the world, away from the tribal regions. So we are seeing that it is having an impact and just to reinforce what Rosa Brooks said, the precedents we are setting clearly 

are worrisome, potentially. 

Eighty countries have drones, three of them have armed drones 

that we know of. The Chinese are very close to being able to arm 

their drones. You could easily imagine a situation where China deploys drones against Uighur separatists, for instance, using essentially the same rationale that we have used against Al-Qaeda or 

the Taliban who we deem to be terrorists. 

[The prepared statement of Mr. Bergen appears as a submission 

for the record.] 

Chairman DURBIN. Thank you very much, Mr. Bergen. 

Our last witness on the panel has certainly made a personal sacrifice to be with us. Farea Al-Muslimi is a Yemeni youth activist, 

writer, and freelance journalist. He has co-founded and chaired several local youth initiatives in Yemen. He currently works for Resonate! Yemen, a grassroots, youth-run foundation aimed at constructively engaging Yemeni youth in public policy dialogue. 

With the assistance of a U.S. State Department scholarship, 

Farea studied in the U.S. during high school. He attended the 

American University of Beirut and graduated with a degree in Public Policy from that institution last year. Mr. Al-Muslimi, I hope I 

pronounced your name close to correct, thank you for traveling 

from Yemen to join us today. I am looking forward to your testimony. 

Please proceed. 

STATEMENT OF FAREA AL-MUSLIMI, SANA’A, YEMEN 

Mr. AL-MUSLIMI. Thank you, Chairman Durbin and Ranking 

Member Cruz for inviting me here today. My name, as you mentioned, is Farea Al-Muslimi and I am from Wessab, a remote village mountain in Yemen. 

Just 6 days ago my village was struck by an American drone in 

an attack that terrified the region’s bull farmers. Wessab is my village, but America has helped me grow up and become what I am 

today. I come from a family that lives off the fruit, vegetables, and 

livestock we raise on our farms. 

My father’s income rarely exceeded $200. He learned to read late 

in his life and my mother never did. My life, however, has been different. I am who I am today because the U.S. State Department 

supported my education. 
16 

I spent a year living with an American family and I attended an 

American high school. That was one of the best years of my life. 

I learned about American culture, managed the school basketball 

team, and participated in trick or treat at Halloween. 

But the most exceptional experience was coming to know someone who ended up being like a father to me. It was a member of 

the U.S. Air Force. Most of my year was spent with him and his 

family. He came to the mosque with me and I went to church with 

him and he became my best friend in America. 

I went to the U.S. as an ambassador for Yemen and I came back 

to Yemen as an ambassador of the U.S. I could never have imagined that the same hand that changed my life and took it from miserable to a promising one would also drone my village. 

My understanding is that a man named Hammed Al-Radmi was 

the target of the drone strike. Many people in Wessab know AlRadmi and the Yemeni government could easily have found and arrested him. Radmi was well known to government officials and 

even to local government, and even local government could have 

captured him if the U.S. had told them to do so. 

In the past, what Wessab villagers knew of the U.S. was based 

on my stories about my wonderful experiences here. The friendships and values I experienced and described to the villagers 

helped them understand the America that I know and that I love. 

Now, however, when they think of America, they think of the terror they feel from the drones that hover over their heads ready to 

fire missiles at any time. What the violent militants had previously 

failed to achieve, one drone strike accomplished in an instant. 

There is now an intense anger against America in Wessab. 

This is not an isolated instance. The drone strikes are the face 

of America to many Yemenis. I have spoken to many victims of 

U.S. drone strikes like a mother in Jaar who had to identify her 

innocent 18-year-old son’s body through a video in a stranger’s cell 

phone, or the father in Shaqra who held his 4- and 6-year-old children as they died in his arms. 

Recently in Aden I spoke with one of the tribal leaders present 

in 2009 at the place where the U.S. cruise missiles targeted the village of Al-Majalah and Lawdar, Abyan. More than 40 civilians 

were killed, including four pregnant women. The tribal leader and 

others tried to rescue the victims, but the bodies were so decimated 

that it was impossible to differentiate between those of children, 

women, and their animals. 

Some of these innocent people were buried in the same grave as 

their animals. In my written testimony I provided detail about the 

human cost of this and other drone strikes based on interviews I 

have conducted or have been part of. 

I have a personal experience of the fear they cause. Late last 

year I was in Abyan with an American journalist colleague. Suddenly I heard the buzz. The local people we were interviewing told 

us that based on their past experiences, the thing hovering above 

us was an American drone. My heart sank. I felt helpless. It was 

the first time that I had truly feared for my life or for an American 

friend’s life in Yemen. 

I could not help but think that the drone operator just might be 

my American friend with whom I had the warmest and deepest re-
17 

lationship. I was torn between this great country that I love and 

the drone above my head that could not differentiate between me 

and some AQAP militants. It was one of the most divisive and difficult feelings I have ever encountered. I felt that way when my village was also droned. 

Thank you for having this hearing. I believe in America and I 

deeply believe that when Americans truly know about how much 

pain and suffering the U.S. air strikes have caused and how much 

they are harming efforts to win hearts, minds, and grounds in 

Yemen and hearts and minds of the Yemeni people, they will reject 

this devastating targeted killing program. Thank you. 

[The prepared statement of Mr. Al-Muslimi appears as a submission for the record.] 

Chairman DURBIN. Thank you, sir. 

General Cartwright, in a recent speech before the Chicago Council on Global Affairs, you noted your concerns about potential reaction to targeted strikes. In that speech you said if you are trying 

to kill your way to a solution, no matter how precise you are, you 

are going to upset people even if they are not targeted. 

General Stanley McChrystal has also stated that the resentment 

created by American use of unmanned strikes is much greater than 

the average American appreciates. Mr. Al-Muslimi’s testimony provides a chilling example of how these strikes can undermine our efforts to win the hearts and minds of the very people we are relying 

on to provide us intelligence and ultimately be our allies. 

Are we trading short-term tactical success of killing individual 

targets for the long-term strategic failure by sowing widespread 

discontent and anger? 

General CARTWRIGHT. Senator, I cannot talk to specific operations. 

Chairman DURBIN. I understand. 

General CARTWRIGHT. But I am worried that we have lost the 

moral high ground for many of the reasons that the witnesses have 

talked about, and that some element of transparency in process, in 

decisionmaking, in the understanding not just of those who actually make decisions, but of the people of this country and the people of the countries that we are working in is going to be essential 

to find our way back to that moral high ground. 

I believe that if people understand what the options are and the 

choices are and that they are reviewed and they are basically, as 

we do in our judicial system, in an adversarial way looked at with 

a very jaundiced eye about whether we want to proceed or not to 

proceed, that we can move in a direction that is far better than 

where we are today. 

But I believe that in several areas around the world, the current 

drone policies have left us in a position where we are engendering 

more problems than we are solving. 

Chairman DURBIN. Wouldn’t you also, I am sure, acknowledge 

that because of the classified nature of information that is being 

used to target and protecting the sources and methods which we 

are using to find that information makes transparency if not challenging, impossible? 

General CARTWRIGHT. I would say challenging but not impossible. In other words, it is not necessary to provide the secret sauce 
18 

to provide an understanding of why you are doing what you are 

doing, how you are making the decisions and why they are necessary and that you have reviewed alternative choices in that decision process. I think that is the important part to get out. 

I do not disagree that again, as I said in my testimony, that the 

policy that we are following in the global war on terrorism is a policy that I support, but it is the means and the methods here that 

I think we have to take a look at and seriously reflect on. 

Chairman DURBIN. Professor Brooks, I am just looking down the 

panel to see who might have been here in 2001 to cast the vote on 

the Authorization for the Use of Military Force. 

I can remember there were two votes. One relative to the invasion of Iraq and 23 of us voted in the negative. And then the second vote which we considered to be the direct answer to 9/11 for 

the invasion of Afghanistan, the direct assault on Al-Qaeda. Virtually all Members of the Senate voted in favor, and I believe all 

of them did if I am not mistaken. 

At the time though I do not think there is a single Senator who 

would say that they envisioned 12 years later that we would be 

ending the longest war in our history and that we had created an 

authorization for an ongoing war-like effort against Al-Qaeda 

operatives and their associates. 

I guess my question to you is whether or not the AUMF, the Authorization for Use of Military Force, is adequate to the task of protecting America when we are still menaced and terrorized by those 

who would do us evil and whether or not there needs to be a revisit 

of that AUMF to determine whether it should be stronger or more 

specific. 

Professor BROOKS. Senator Durbin, I would be inclined to urge 

Congress to repeal the 2001 AUMF. I think that the President already has ample power as the Commander in Chief and as the 

Chief Executive of the United States to use military force when it 

is necessary to protect the United States from an imminent threat 

and imminent and grave threat. 

But I would emphasize the words imminent and grave. I think 

that in the absence of an Authorization to Use Military Force, we 

would very likely see the executive branch perceive itself as constrained to do a more careful analysis of the importance of using 

military force, particularly in context where it is a targeted killing 

in a foreign country which raises sovereignty issues among other 

things. 

I share my colleague’s view that there is nothing inherently 

wrong about the use of targeted killing as a counterterrorism tool 

or in the context of armed conflicts, but I do think that we have 

gotten well beyond, as you suggest, what the drafters of the AUMF 

and those who voted for it could ever have imagined. We have 

stretched it from Al-Qaeda and from the actual language of the authorization which focused very squarely on those with responsibility in some way for 9/11 and on preventing future attacks such 

as that on the United States. We have begun to shift, as my colleagues have said, to those who you might say are further and further down the terrorist food chain, not so much senior operatives, 

but lower level militants and suspected militants. 
19 

We have also shifted to focusing on organizations that would not 

necessarily fit that AUMF definition, such as Somalia’s AlShabaab. It is not that clear that they would fit the definition in 

terms of either any link to the 9/11 attacks or in terms of any capability, capacity, and inclination to focus on the United States. 

Chairman DURBIN. I guess what I am driving at is this. I think 

the definition of our enemy in that AUMF, as Al-Qaeda and associates, could certainly be challenged today in terms of terrorism 

threats to the United States. I think some have gone far afield 

from the original Al-Qaeda threat, but there are still realistic 

threats. So the definition of our enemy, our enemy combatant, 

would have to be carefully considered in that context. 

Second, I would think that we now are challenged to define the 

battlefield and where we can engage in targeted killing and what 

it takes to authorize us to go into Somalia, Yemen, Pakistan, Afghanistan or nations in Africa. 

Where is that battlefield? It seems like it can change almost on 

a daily basis and still be a threat to the United States. 

I would say having been through this debate—my time is about 

up here. Having been through this debate in the House and the 

Senate over the authority and responsibility of Congress to declare 

war on behalf of the American people that I do not think our founding fathers in their wisdom could have envisioned quite what we 

are facing today in trying to keep this country safe. 

Senator Cruz. 

Senator CRUZ. Thank you, Mr. Chairman. I would like to take 

the opportunity to welcome and thank Senator Grassley who is the 

Ranking Member on the Full Committee for joining us at this important Subcommittee hearing and with unanimous consent, I 

would like to offer Senator Grassley the opportunity to ask his 

questions before I ask mine—— 

Senator GRASSLEY. I will wait my turn. Go ahead. 

Senator CRUZ. Very well. Thank you and welcome, Senator 

Grassley. 

I appreciate each of the witnesses coming here and for presenting 

very learned and very provocative testimony on this critical issue. 

I would like to begin by posing to each of you the hypothetical that 

I posed to Attorney General Holder, because it seems to me on the 

question of what is the permissible use of legal force there are ends 

of the spectrum that are relatively easy to answer and then there 

are areas in the middle that raise far more complicated legal questions. 

It seems to me that there is no serious question that if a foreign 

national is overseas and is actively taking up arms against the 

United States, that lethal force can and probably should be used 

against that foreign national in those circumstances. 

Likewise, it seems clear to me that the answer to the hypothetical I posed to the Attorney General is simple and straightforward, and that hypothetical was, if a United States citizen is on 

U.S. soil and we have intelligence to suggest that that individual 

is a terrorist, is involved with Al-Qaeda, but at that moment that 

individual poses no imminent threat, indeed if that U.S. citizen is 

sitting on U.S. soil at a cafe ́ in Northern Virginia, does the Con-
20 

stitution allow the U.S. Government to use a drone to kill that U.S. 

citizen on U.S. soil? 

Now, in my view the answer to that question is simple and 

straightforward, it should be absolutely not. The question I would 

like to pose to all six of you is, does anyone disagree with me on 

that? Does anyone disagree that the Constitution does not allow 

killing a U.S. citizen on U.S. soil if that individual does not pose 

imminent threat? 

General CARTWRIGHT. I agree with you. 

Senator CRUZ. I am encouraged by that answer. I wish the 

Obama administration had accepted this Subcommittee’s repeated 

invitations to send a representative because the last time the Attorney General was here, he was quite reluctant to pose that answer that all six of you just gave. 

It seems to me there are many difficult questions about the use 

of drones in our current policy in using them overseas. There are 

strategic questions. Using a drone strike to take out a terrorist or 

even a leader of Al-Qaeda means necessarily that that individual 

will not be apprehended, that individual will not be interrogated, 

we will gain no actionable intelligence, and we will not, as a result 

of any interrogation, be able to prevent acts of terror in the future. 

Of course with a drone strike, the risk of error is such that if 

that individual is not who we think it is, there is no process to correct that mistake. The consequences of mistakes are significant. 

That being said, the ambit of this Committee is the Constitution, 

and that is the principal focus of this hearing. I would like to ask 

a question of Professor Brooks and Professor Somin which is it 

seems to me that on the question of the constitution’s parameters, 

if we agree with the two extremes I suggested, then you get into 

the whole gray area in between. 

I want to suggest four possible criteria and get both of your 

thoughts as to how each of those criteria impact the constitutional 

question. The first is the individual that is the target of the drone 

strike, whether that individual is a United States citizen, whether 

that individual is a legal permanent resident, or whether that individual is a foreign national. 

The second possible criterion that may be relevant to the constitutional inquiry is the location. Is that individual on U.S. soil or 

is that individual overseas? A third possible criterion is whether 

that individual is actively affiliated with a foreign hostile force 

such as Al-Qaeda. A fourth possible criterion is whether that individual poses an imminent threat of violence. 

I will note one of the concerns I have about the white paper that 

was released on NBC is the definition of imminent threat in my 

view that this administration has put forward is exceedingly broad. 

So I would ask both Professor Brooks and Professor Somin to address your views of the constitutional relevance of each of those 

four criteria and to the extent imminent threat is important, how 

should it properly be defined in cabin so that it is a relevant qualifier? 

Professor BROOKS. Thank you, Senator. I think that those are 

perfectly reasonable criteria. I think that the administration as 

well has put out very similar criteria. The trouble is, the devil is 

in the details as you suggest. 
21 

We can say well, if someone meets the criteria of being a member 

of a foreign force that is taking up arms against the United States 

or something like that, then they become targetable. No one will 

disagree with that on broad principle. The trouble is who decides 

what constitutes evidence, what if you make a mistake and so 

forth. The same is true for all of those other criteria. 

No one will disagree with the notion that the United States has 

the authority and indeed the President has the inherent authority, 

AUMF or no AUMF, to use military force in the context of a threat 

of an imminent and serious attack against the United States. But 

as you suggest, that term ‘‘imminence’’ has gotten pretty squishy 

in the administration’s legal memos that we have seen so far. 

I think that is why I would highlight not so much the criteria 

in the abstract, but creating adequate mechanisms to ensure sufficient transparency consistent obviously with the classification concerns and to ensure oversight and accountability in the case of 

abuse and mistakes. 

There is one other thing I would add though. To me, we not only 

have a constitutional question, but we also have a broader rule of 

law question. In the Declaration of Independence, our forebears 

spoke of inalienable rights that all men had, and today we would 

talk about human rights. 

The fact that someone is not a U.S. citizen—while it does mean 

that they do not have the specific protections of our constitutional 

law—obviously should not make us care less about their legal recourse in the event that they are wrongly or abusively targeted. 

Again, while I am fully confident in my colleague’s—in the administration making their very best efforts to prevent abuse in 

error, I do not know that that is a very firm foundation for thinking about the rule of law more generally and in the future. 

Professor SOMIN. Thank you very much for the question. I think 

each of the four points you raised are potentially important in different situations. Let me briefly try to give a few thoughts on each 

of them. 

One is the question of whether the individual is a U.S. citizen 

or a foreign national. As I noted in my initial testimony, a U.S. citizen can potentially be an enemy combatant in a war and that does 

make him or her a legitimate target if he is. However, there are 

special constitutional problems that arise with abusive targeting of 

U.S. citizens where doing that might be a violation of the Fifth 

Amendment. It is less clear whether the Fifth Amendment applies 

to foreign nationals outside of U.S. soil. 

Obviously even if it does not, targeting an innocent civilian is 

still illegal under various domestic and international laws even if 

they are not a U.S. citizen. But the constitutional issues might potentially be different. 

The question of location, your second criterion, I think is more 

fully covered in Professor Brooks’ written testimony. I would tentatively suggest that there is a reasonable distinction that should 

be drawn between terrorists or suspected terrorists located in areas 

where either the government is supporting the terrorists or they do 

not have meaningful control over what is going on in their area 

versus countries where there is a rule of law and where we can legitimately resort to working with that government and appre-
22 

hending these people by peaceful means, or at least without resorting to lethal force in the first instance. 

Third, I think it does make a significant difference whether the 

individual in question is actually affiliated with Al-Qaeda or one of 

its associates or whether he is an independent operator or affiliated 

with some other unconnected group. 

The Authorization for the Use of Military Force does not give the 

President the authority to target any and all potentially hostile 

groups. It is specifically limited to ‘‘those nations, organizations or 

persons that the President determines planned, authorized, committed or aided the terrorist attacks that occurred on September 

11, 2001 or harbored such organizations.’’ 

It seems to me that while we are at war with the organizations 

listed in the AUMF, we are not at war with all potentially dangerous groups. To the extent that some of the targeting has gone 

beyond that level, then the laws of war may not apply in the same 

way and it does make a difference. One of the things that I urge 

in my written testimony is that Congress consider not abolishing 

the AUMF but clarifying it to more clearly delineate what, if any, 

other groups beyond those listed are legitimate targets. 

Finally, on the question of imminent threat, I think as I noted 

in my written testimony that for groups that we are at war with, 

we can target them even if they are not an imminent threat. For 

people who are not covered by the AUMF, I think how imminent 

a threat they pose is an important issue and one that perhaps we 

can address in more detail later. I do not want to take up too much 

time. Thank you. 

Senator CRUZ. Thank you, Mr. Chairman. 

Chairman DURBIN. Thank you very much. Before recognizing 

Senator Franken, I ask consent to enter a statement by the Chairman of the Committee, Senator Leahy, without objection will be entered. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman DURBIN. Senator Franken. 

Senator FRANKEN. I want to thank the Chairman for holding this 

important hearing. Obviously drone strikes have transformed the 

way we conduct war and this transformation has given rise to vocal 

opposition and extensive public debate. 

You know that we are dealing in new, strange territory when 

Senator Cruz and I have the same questions. Imminence was one 

I wanted to talk about in this new standard which seems really 

broad to me too, Senator. 

I think this debate and discussion is important, which is why can 

you believe the legal justification for these strikes—they need to be 

made public in a suitable form. 

I went to the secure room and looked at some of these memos 

and after reviewing them, I do not understand why the expert redactors at the Department of Justice could not have just stripped 

out any of the national security information, the sources and methods that need to be redacted and make the legal analysis public. 

I was also disappointed that the administration did not send a witness today as was the Chairman and Ranking Member. 
23 

I have long argued that the Department should not practice secret law and should make all of the Office of Legal Counsel’s opinions available to the public. I think transparency and accountability are very important, especially for an issue as sensitive as 

this. 

I am also troubled that this has not been released to Congress, 

all the memos related to targeted killings. 

As far as the question that the Ranking Member asked, this is 

not my question, it came from another Senator. He has not authorized me to ask this, or she. See? I can be a secret agent, too. 

This just in terms of targeting U.S. citizens, we had a situation 

in Boston where we had a guy holed up in a backyard in a boat. 

He, for all accounts, had explosives on him. They did send a robot 

in actually to go in and take off the tarp over the boat. But isn’t 

it possible that we could see a situation in which we might want 

to take that person out in a different way, as odd as that is for me 

to ask. It feels odd, but anybody have an opinion on that? 

I mean, the Attorney General answered the question about, well, 

actually Senator Paul’s question, does the President have the authority to use a weaponized drone to kill an American not engaged 

in combat on American soil. Eric Holder said no, but does anyone 

have an opinion on that? 

General CARTWRIGHT. I would like to comment on the approach, 

I will let the lawyers talk about the law side of it. There were in 

that scenario, and many other hypothetical scenarios that you 

could walk through, inside the United States so many other means 

by which we can approach this situation safely and ensure that if 

the last act was for the individual to stand up and put their hands 

in the air that we would not revoke that right of the individual to 

give up. 

So to me, to stand off and shoot in the case of a drone is normally scenario-dependent and not something I could answer. 

Senator FRANKEN. Well, we would only resort to that obviously. 

This is maybe arguing angels on the head of a pin, so I will move 

on. 

Professor Brooks? Sorry. 

Professor BROOKS. The only thing I would say is I think it is very 

important to distinguish between the kind of weapon and the kind 

of legal framework. A weapon that is released by a remotely piloted 

vehicle or a robot is just a weapon. 

We have very clear rules in the domestic law enforcement context about when police can use lethal force. Those are clear. As 

long as we have that clear legal framework, the lethal force is sort 

of irrelevant what means you use. 

The problem is not the drone hypothetically being used as opposed to something else. I think the problem is whether we think 

that we have to abide by the normal rules that govern police use 

of lethal force or whether we think we are in a law of war environment in which, as Professor Somin noted earlier, you can target an 

enemy combatant while he is sleeping. He does not need to pose 

any imminent threat. You are targeting based on his status, not 

based on his activities. 
24 

Senator FRANKEN. All right. Since we are talking about the 

method we use, and we are talking about blowback, Mr. Bergen 

and Mr. Al-Muslimi, very disturbing testimony. 

This might be to you, Professor Brooks or to Mr. Bergen or anyone. We have blowback when we do manned air strikes. What is 

the difference? 

In other words, I think you wrote in your testimony—I am sorry 

I was not here Professor Brooks for your oral testimony, but that 

there are obviously civilian casualties when we do manned air 

strikes. 

Is there a qualitative difference? Is there really? Anyone who 

wants to answer that. 

Colonel MCSALLY. Senator Franken, this goes to the heart of 

what I was trying to get in my testimony which is once you have 

answered the question that it is legal to do a strike and that it is 

good strategy to do a lethal strike, when you are then selecting the 

platform, a remotely piloted aircraft actually gives you better precision with a small warhead with persistence overhead with the ability to abort at the last minute with the whole chain of command 

and the lawyers watching with the intel analysts who are not getting shot at. 

So once you have decided to actually conduct a strike, the RPA’s 

provide unprecedented persistence and oversight. When we are 

using ground forces, special operations, artillery, fighter aircraft, 

which I have done many times, you do not have that same level 

of oversight. You often have in some cases individuals on the 

ground talking with aircraft overhead whose buddies have just 

been shot up and their perspective is skewed. So you are making 

decisions in the heat of the battle. 

We do that with great precision as well, but in this case when 

we are talking about counterterrorism operations and we are having to choose the platform, oftentimes we are talking about places 

where we do not have American forces and then we have to decide 

whether we want to risk American forces to go in there either on 

the ground or in the air. 

The RPA’s do give us an asymmetrical capability where we do 

not have to risk American forces. That is not a bad thing that we 

are not risking American forces once we have decided it is important to conduct a lethal strike. So this does provide greater 

lethality and persistence in the ability to abort than other assets. 

Professor SOMIN. Just one small comment on that question. I 

think the key point as I tried to stress in my written testimony is 

that what matters is not whether we are using a drone or a bomb 

or a plane or even a sword or a dagger. That is not what matters 

from a moral or legal point of view. What matters is whether we 

are choosing the right target. 

If we have chosen the right target, then we are entitled to use 

all appropriate weapons and I think it would be a mistake to ban 

a particular technology, particularly if, as in this case, it is sometimes more accurate and discriminating than other alternatives. 

Senator FRANKEN. Mr. Al-Muslimi raised his hand. What I wonder is and I think you will speak to this, is that this new type of 

warfare, and Mr. Bergen has spoken to the number of countries 

now, 70 that they are in, is it a different kind of blowback? 
25 

Is there a different kind of reaction because of the very nature 

of it? 

Mr. AL-MUSLIMI. Yes. I think the main difference between this 

is it adds into Al-Qaeda propaganda of that Yemen is in a war with 

the United States. The problem of Al-Qaeda if you look to the war 

in Yemen, it is a war of mistakes. 

The less mistakes you make, the more you win. The drones have 

simply made more mistakes than AQAB has ever done in the matter of civilians. You are also neglecting a very simple fact which is 

you actually can capture this person. It is not impossible. Just like 

the last time recent in my village. You could have captured this 

person and that is a big blowback. 

AQAB power has never been based on how many numbers it has, 

whether it has 1,000 or 10,000. Actually the difference is not that 

much. It is about how much logic it has on the ground and how 

much it can convince more Yemenis that they are in a war with 

the United States. 

The drones have been the great tool they have used to prove that 

they are in a war with the U.S. I think that is the main blowback 

that is not with the ground forces, especially if there is ground 

forces. The ground forces of Yemen can capture them, actually, and 

have information from them. 

Senator FRANKEN. Thank you for that chilling perspective. 

Mr. Chairman. 

Chairman DURBIN. Thank you. It is my understanding Senator 

Grassley will have a chance to ask questions at this point. 

Senator GRASSLEY. All right. First of all, permission to put a 

statement in the record. 

Chairman DURBIN. Without objection. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Senator GRASSLEY. Professor Somin, I am going to immediately 

go to a question instead of a lead in to it because as a follow-up 

on the discussion you had with Senator Cruz, is the current AUMF 

broad enough to encompass targeted strikes ordered by a President, or in this case President Obama, or should Congress broaden 

the AUMF in order for these strikes to continue? 

Professor SOMIN. Without knowing the full details of all the targeted strikes that have been done, it is hard for me to say which 

of them, if any, cannot be covered by the AUMF, though I suspect 

based on what is on the public record that some are at least questionable. 

I think Congress should try to amend the AUMF to more precisely define what kinds of groups we can target if we do want to 

target as I think, perhaps, we do, some groups that are not covered 

by the AUMF. 

Ideally what we want is the ability to target organized groups 

who are waging war against us, but at the same time not give the 

President a blank check to target whatever groups he or someone 

else in the administration might consider it might be a good idea 

to go after if they are not really waging a war against us. 

I do not think you should completely repeal the AUMF. But some 

revisiting and clarification is definitely desirable. 
26 

Senator GRASSLEY. Do you think the Constitution provides a sufficient basis for the President to order these targeted strikes absent 

reliance upon that law? 

Professor SOMIN. It depends on what strikes we are talking 

about. Strikes that do deal with imminent threats, defined relatively narrowly, could perhaps be justified as defense against attack. But beyond that I think one cannot launch strikes against 

groups that are not covered by the AUMF. 

Senator GRASSLEY. I did not direct this to you, Colonel McSally, 

but what is your view on my last question about the Constitution 

versus absence reliance upon the AUMF? 

Colonel MCSALLY. Sir, I am not a legal expert, but I will say that 

Article II of the Constitution, if the target is an imminent threat, 

then that clearly is authorization in and of itself. 

Where AUMF comes in is when you do not have that imminent 

threat criteria, but you have Al-Qaeda, Al-Qaeda leaders, Al-Qaeda 

affiliates that are specifically designated through the intelligence 

process in order to allow them to be legitimate targets. 

So just speaking broadly in my work in Africa Command which 

actually I think has the highest level of scrutiny of the areas that 

we are talking about, it was a very high level in order to make the 

case that individuals or organizations fit the criteria of AUMF. 

That bar was very high and those discussions were at the very 

highest level of the chain of command before anybody was approved. 

Senator GRASSLEY. My next question, Professors Brooks and 

Somin, you both suggested today that one of the problems with the 

current drone strike procedure is oversight, specifically who determines the targets, how they do so, and how much evidence they 

might need. 

One solution some have raised is an independent court that reviews administration targets prior to drone strikes similar to the 

current FISA court that reviews foreign intelligence operations. 

Critics of this proposal note that a court would be misleadingly 

comforting to the public because they are not experts in warfare. 

Further, the use of such court raises separation of power concerns. 

Question: Do you think that a special FISA type court is a good 

idea to provide independent oversight of the administration targeted killing program? And then let me follow up. Would such a 

court be constitutional? 

Professor SOMIN. In brief, I think it would be constitutional and 

certainly most agree that the FISA court is. There can be legitimate questions about how such a court would be set up and how 

it would be run and some scholars that I cite in my written testimony have discussed this in some detail. 

I think the issue of the people on it not being expert enough can 

be overcome simply by appointing lawyers and others who do in 

fact have a background in relevant military issues. 

There is always, of course, a danger of false comfort or complacency. But I think such an institution by providing an outside 

check on executive discretion can at least prevent the most serious 

abuses that can possibly arise. Nothing can solve all our problems 

completely. But our goal should be to at least try to minimize them 

and reduce them relative to what might otherwise occur. 
27 

Professor BROOKS. Senator, I agree that one could devise such a 

court that would pass constitutional muster. I would note, however, 

that many of the issues associated with a court that would approve 

in advance targeting decisions could be eliminated by shifting the 

focus. Specifically, if Congress were to create a statutory cause of 

action for damages for those who had been injured or killed in abusive or mistaken drone strikes, you could have a court that would 

review such strikes after the fact. Having such a court might eliminate a lot of the problems associated with having judges acting in 

advance but still create a pretty good mechanism that would frankly keep the executive branch as honest as we hope it is already and 

as we hope it will continue to be into administrations to come. 

Also, there is no inherent reason that such a court would need 

to operate in the extreme degree of secrecy that we have seen with 

the FISA court. There is no inherent reason that you could not 

have at least declassified portions of opinions. Something like that 

is not the only potential solution to the various oversight and accountability problems, but I think it would certainly be one of the 

approaches that would go a very long way toward reassuring both 

U.S. citizens and the world more generally that our policies are in 

compliance with rule of law norms. 

Senator GRASSLEY. My last question will go to Professor Somin. 

In your statement, you identified two key issues with the administration’s current approach on drones. First, who in the administration decides who should be targeted, and second, how much proof 

they need to actually order a strike. 

You note that the administration’s white paper did not actually 

answer these troubling questions. Indeed we have seen that the administration is reluctant to share its process with the American 

people. 

Two questions. First, do you think it would be beneficial for the 

administration to publicly disclose its current drone targeting procedures so that the people know how those officials determine who 

to kill during targeted drone strikes? Second, what do you think 

would be the proper burden of proof in these targeted drone 

strikes? 

Professor SOMIN. Senator, those are, I think, both good questions. 

Like many of the other panelists and the Senators on the Subcommittee, I agree that it would be desirable to disclose the legal 

basis and criteria that are used, obviously, consistent with not disclosing classified intelligence and methods and sources and the 

like. I think it is legitimate to ask the administration to do that. 

In terms of what the burden of proof should be, I am not sure 

I have a clear opinion of the exact precise standard. Realistically 

it probably should be lower than the beyond a reasonable doubt 

standard that we use in criminal cases because the nature of war 

probably does not allow proof to that high level. But it should certainly be more than a minimal level of proof. Some scholars such 

as Amos Guiora have proposed various standards of proof and I 

think that ultimately we should aim for a standard that is realistic 

in war but also provides us with at least a substantial degree of 

confidence that we are not targeting people recklessly and that we 

have at least substantial and extensive intelligence backing the decision. 
28 

Senator GRASSLEY. Thank you, Mr. Chairman, and thank you 

panel. 

Chairman DURBIN. Thank you, Senator Grassley. 

Senator Blumenthal. 

Senator BLUMENTHAL. Thank you, Mr. Chairman, and thank you 

for holding this hearing and thanks to our Ranking Members as 

well. 

I think we are wrestling with a lot of these profound questions 

and wrestling on a very bipartisan basis as you have seen because 

we are struggling with issues not only of constitutional law, but 

also of conscience and conviction and morality, not to mention the 

profound foreign policy implications that may be involved. 

I want to thank Mr. Al-Muslimi for giving us the insight into the 

chilling unintended consequences of possible mistakes in this area. 

I have to assume they were unintended consequences because simply we have that faith in the good intentions of our military and 

of the decisionmakers who are guiding this process. 

Stepping back for a moment, one question on my mind is whether the rules applicable to drones—and they are in the title of this 

hearing, call them unmanned aerial vehicles or remotely piloted 

aircraft. Whatever they are called, whether those rules really 

should be fundamentally different than they are for any targeted 

strike. 

Colonel, as you have pointed out, when the decision is made to 

do a targeted strike, assuming that decision is justified by imminent threat or all of the other criteria, then we have a set of tactical weaponry at our disposal. It may be boots on the ground, 

fighter aircraft, cruise missiles, or artillery. 

Very often remotely piloted aircraft are more precise, quicker and 

more reliable with less cost both in terms of collateral damage and 

potential threat to our own troops. So I guess the question on my 

mind is should the rules be any different for this new form of weaponry? 

The rules are obviously different for nuclear strikes in some 

sense and we are developing rules for cyber warfare as General 

Cartwright has made the point very aptly and powerfully. But let 

me begin, Colonel McSally, and then perhaps to you, General Cartwright. 

Knowing the nuts and bolts of this kind of weaponry, should the 

rules be any different for remotely piloted aircraft, a term which 

I agree probably more aptly and accurately describes this kind of 

weaponry, than the other targeted strikes? 

Colonel MCSALLY. Thank you, Senator. Absolutely I think the answer is no, the rules should not be different. A remotely piloted aircraft is simply a tool to meet our objectives once we have decided 

that we want to meet those objectives and it is legal to meet those 

objectives. 

This discussion actually reminds me a little bit about after World 

War I when our pioneer of air power, Billy Mitchell, was trying to 

make the case that we could take out naval ships with air and nobody could believe him and we thought that was ridiculous. Then 

he had to make that case and there was a whole lot of angst over 

using this new tool of air power in order to meet our objectives. 
29 

We eventually got to the point where we are very comfortable 

using air power in certain circumstances versus ground forces or a 

naval gun fight in order to meet our military objectives. 

I think this is a very similar transformation that we are going 

through. This discussion and the debate is all certainly worth having. I think where we need to have our focus is the transparency 

on the legal argument and the transparency on the justification for 

our counterterrorism strategy for use of lethal force and focus it 

there and then keep this remotely piloted vehicle discussion, remotely piloted aircraft as a tool that we are using that is an asymmetrical advantage that we have and if we are in a fight, it is okay 

to have an asymmetrical advantage. You do not have to risk American lives if you need to use lethal force to meet your objective, so 

why would we when we have the capability to do it in a way that 

is cheaper, more persistent, and less risk to American lives? 

I think the rules should not be different and I think this discussion is worthy. But I will also say from a military process, there 

are really two elements that we go through. One is, how do we approve an individual to be an approved target? The second process 

is, then what do you go through in order to actually get approval 

to strike and to conduct the strike? 

This is where I think we need to be focusing the discussion. This 

process right here, also you could raise or lower the bar based on 

discussions here today of are we hitting higher level or lower level, 

but from my experience there is a whole lot of precision and scrutiny in this second part and we need to be focusing on this first 

part. 

Senator BLUMENTHAL. Do you agree, General? 

General CARTWRIGHT. I do agree. I think one of the opportunities 

here that remotely piloted aircraft can offer us is that there is more 

decision time, therefore more review time, therefore a better opportunity to be sure. 

There are more eyes on the issue in an environment where they 

can make decisions, so it offers us opportunity that we probably 

have not taken advantage of. 

Senator BLUMENTHAL. Conversely, anybody who is familiar with 

the history of war knows that abuses in the use of aircraft bombing, carpet bombing involving unintended damage or perhaps sometimes intended damage to civilian populations is endemic to the 

history of warfare and sometimes used by our enemies. Unfortunately in some instances in the past, used by the United States. 

We are dealing here with a set of questions that has persisted 

for some time. 

Let me focus and again to you, Colonel McSally, because Mr. AlMuslimi raises the issue and I think it is a very legitimate issue 

that somehow there is the appearance, the perception of greater 

damage and possible mistakes associated with this kind of weaponry, this tool. Is that a fair criticism do you think? 

Colonel MCSALLY. Well, I cannot speak specifically, Senator, 

about operations in his country, but I can say that the capability 

does exist to make sure that we minimize civilian casualties. The 

process that I have been through and I am familiar with is one 

where we have to meet a very high level of positive identification 

once a target has been approved as a target, that we have actually 
30 

met the criteria of positive ID, that we have met the criteria of geographic location with a variety of different sources, again, it is with 

high confidence and that we have done a very thorough collateral 

damage assessment which is a very detailed process that we go 

through. 

Again, I would encourage you all to get the classified briefing on 

that process and how we do that and to make sure that we do not 

have unintended civilian casualties. So we do have the process 

available and in the case that you so eloquently have been sharing 

about the impacts of some of the strikes going on in his country, 

I think we do need to take a look at the scrutiny of who is on that 

list, again in that first portion and then making sure that the operators have the appropriate bar of positive identification and geographic location and their collateral damage assessment. 

We do have the capability and we have done it in the past and 

this testimony shows that we need to ensure that that is very high 

because the unintended consequences are severe. 

Senator BLUMENTHAL. My time has expired, but if the Chairman 

allows, if Mr. Al-Muslimi has any comment. 

Chairman DURBIN. Of course. 

Mr. AL-MUSLIMI. Thank you. I would say one of the things that 

are needed the most are say who is on this list. A lot of the mistakes also that have happened is because I do not know if this person is a target or not, therefore he is welcomed anywhere he goes 

and that has made a lot of mistakes that have happened. 

A lot of killing has happened simply because people do not know 

that this person is a target and not just that he was not tried to 

be arrested. 

Another issue it has blowback of making people fear the U.S. 

more than fearing AQAB. I met the lady or the man from Nader 

in the middle and what he say is that in the past women used to 

tell their children go to sleep or I will call your father. Now they 

say go to sleep or I will call the planes. 

That has shifted the whole conversation, or the whole thing of 

this. In addition, it is not just any qualitative blowback of this specific example, but more importantly it is a killing legitimacy of the 

government which is killing, making it look like the American public in Yemen, making other countries like Iran, making use of this, 

and it has done much more than you can imagine. 

Chairman DURBIN. Thank you. 

General CARTWRIGHT. Senator, just real quick. 

Chairman DURBIN. Yes, General. 

General CARTWRIGHT. I worry here. What we have seen with 

drones is that without precise targeting on the ground, precise information and intelligence that is verifiable, that that is generally 

when we have errors. So we need to look at that end of the process. 

In whatever process we put together, we need to ensure that the 

intelligence that drives the targeting is also part of the scrutiny. 

If we miss that, then we rely as you say just on the drone, we have 

challenges. 

Senator BLUMENTHAL. Thank you. Thank you, Mr. Chairman. 

Chairman DURBIN. Senator Graham. 

Senator GRAHAM. Thank you, Mr. Chairman. I would just like to 

say for the record that no system is perfect, but generally speaking 
31 

I want to applaud the Obama administration’s what I think is an 

aggressive and responsible use of the drone program, particularly 

in parts of the world where we do not have ground forces or a 

whole lot of control to make the rest of us safe. 

I do not get to say many good things about President Obama in 

South Carolina, but I will say that I think he is serious, I think 

he is thoughtful, and I think he takes the responsibility when it 

comes to targeting people in a very Commander-in-Chief-like way. 

General Cartwright, as a Marine, when you are ordered into battle by your Commander in Chief, do you obey his orders? 

General CARTWRIGHT. I do. 

Senator GRAHAM. I find it a bit odd, quite frankly, that we are 

going to give the Commander in Chief, under the Constitution by 

the way, the authority to order our own citizens into battle but 

they do not get to go to court. 

The Marines do not get to say, ‘‘I think that is a dumb decision, 

I want to go get a judge to say, ‘hey, you should not go.’ ’’ 

My belief is that there is nothing more basic to being Commander in Chief than being able to order people into battle and 

being able to suppress the enemies of this Nation. If you want to 

talk about transparency, count me in, if you want to talk about 

having Congress more involved in how the system works. But if 

you are contemplating conferring the power from the Commander 

in Chief to a bunch of unelected judges to make wartime decisions, 

count me out. That would be to me a breathtaking overstepping 

and quite frankly, unfair to the courts because if there is a situation where they get a case and they say no, we do not think you 

are quite there and that person winds up killing a bunch of Americans, there would be outrage in this country like you have never 

seen and the court cannot defend itself. 

But here is where elected officials have a different standing. The 

President of the United States would have to answer to the people 

about any mistakes he made. So count me in for reforming the system. Count me out for basically turning the war into a crime. 

Now, the Doctrine of Preemption, do you think that is a solid 

doctrine, Mr. Bergen, in the war on terror? 

Mr. BERGEN. It all goes to the question of imminence, sir. 

Senator GRAHAM. Well, the theory being that basically when it 

comes to Al-Qaeda and Taliban and other folks, it is better to hit 

them before they hit you. 

Mr. BERGEN. If you look at the victims of these strikes, overwhelmingly now they are lower level members of the Taliban. So 

the question is do they pose an imminent threat? 

Senator GRAHAM. All right. Let us talk about that. General Cartwright, you are in Afghanistan. You walk up on a bunch of Taliban 

guys that are asleep. Do you have to wake them up before you 

shoot them? 

General CARTWRIGHT. No. 

Senator GRAHAM. Why? 

General CARTWRIGHT. Because it is an area of hostility and he 

is a legitimate military target, or they are. 

Senator GRAHAM. Mr. Bergen, that is the point. Once you are 

designated an enemy, we do not have to make it a fair fight. We 
32 

do not have to wake you up, we are going to shoot you. The point 

is do not become part of the enemy. 

Here is the problem. How do we know if you are part of the 

enemy? That is a legitimate, honest inquiry here. So what I am 

suggesting is that we kind of back off and look and see the goal 

we are trying to accomplish. What is your name again, sir? I do not 

want to mispronounce your name. 

Mr. AL-MUSLIMI. Al-Muslimi. 

Senator GRAHAM. I have been to Yemen. It is a country in great 

turmoil. Do you agree with that? 

Mr. AL-MUSLIMI. A country of? 

Senator GRAHAM. Great turmoil. Great conflict. 

Mr. AL-MUSLIMI. They definitely have a lot of problems. 

Senator GRAHAM. All right. I understand that. Mr. Bergen, would 

you have advised President Obama to call the Pakistani government up to go arrest Bin Laden? 

Mr. BERGEN. Well, it was discussed and it was rejected. 

Senator GRAHAM. Can you imagine what would have happened 

if it came out in the public that we told the Pakistani government 

Bin Laden is over here, go get him and he got away? My party 

would have eaten President Obama alive. 

The reason President Obama did not do that in all candor is you 

cannot trust the Pakistan government to go pick up Bin Laden. In 

all due deference to your country, there are places in your country 

I would not tell anybody about what we were up to because I think 

the person that we are trying to capture or kill would wind up 

knowing about it. 

Your point is why do we not arrest the guy in the village? Nothing would please me more to be able to arrest somebody to interrogate them, but the world in which we live in is if you share this 

closely held information, Colonel McSally, you are going to wind up 

tipping off the people we are trying to go after. Do you agree with 

that? 

Colonel MCSALLY. In some cases, absolutely, sir. 

Senator GRAHAM. So I just want to put people in President 

Obama’s shoes for a moment. What do you share and who do you 

share it with? Who do you pull the trigger on and who do you give 

a pass? 

All I can say is that he above all others and the next person to 

occupy that office needs to have a reasonable amount of deference 

but not unchecked power. We have one Commander in Chief, we 

cannot have 535 Commanders in Chief. So Mr. Chairman, I am 

glad we are having this debate. 

When it comes to the law of war, the two professors, is it fundamentally different than domestic criminal law? 

Professor SOMIN. Yes, it is. 

Professor BROOKS. Yes, it is. 

Senator GRAHAM. The purpose of the law of war is to win the 

war, is to neutralize the enemy, to gather intelligence. The purpose 

of domestic criminal law is to solve a crime, bring people to justice, 

giving them a chance to be acquitted or convicted and the purpose 

of law of war is fundamentally different. Do you agree with that? 

Professor BROOKS. Absolutely. 

Professor SOMIN. Yes. 
33 

Senator GRAHAM. The goal here is to make sure that we know 

the difference between fighting a war and fighting a crime, and 

here is the problem for the country. There is, Mr. Bergen, no cupola to conquer. There is no Air Force to shoot down, there is no 

Navy to sink. We are fighting an ideology that is transforming 

itself all over the globe. 

We need to look at the AUMF anew, we need to broaden the ability to go after the enemy because it is changing day by day. But 

we need to do so within the values of being an American. 

I will end with this thought. Please do not mistake my zeal for 

defending the country that I do not have values. It was Senator 

McCain and myself with many others who said do not torture the 

detainee. When you capture someone, we do not cut off their heads, 

we give them the lawyer. That makes us better, not weaker. 

So count me in for the idea of fighting the war within our values. 

The reason I do not want to torture anyone is because that is not 

who we are about and it hurts us more than it helps us. 

But having said that, I do understand the difference between 

fighting a war and fighting a crime, and I will work with my colleagues in any way possible to make sure we make the least 

amount of mistakes as a nation. But the one mistake I will not tolerate is the mistake of believing we are not at war. 

Chairman DURBIN. Senator Lee. 

Senator LEE. Thank you, Mr. Chairman, and thanks to all of you 

for joining us today. I would like to start with Professor Somin. 

Professor, in your testimony you note that critics of the administration’s white paper on this issue focus on the weaknesses of the 

three requirements outlined in that white paper that under the 

memo’s analysis must be met before a U.S. citizen may be lawfully 

targeted in a drone strike. 

You argue that because those requirements apply only when the 

individual is a senior operational leader of Al-Qaeda or of some associated force, the memo’s weaknesses might be mitigated or some 

have argued this anyway. 

You state that a senior Al-Qaeda leader likely qualifies as a legitimate target even if he does not pose an imminent threat. But 

as you also note, the real difficulty lies in determining whether 

somebody is or is not in fact a terrorist leader. 

This puts us in an interesting spot. Our constitutional system requires us I think to accord a degree of due process to a U.S. citizen 

before that U.S. citizen is deprived of liberty or property or most 

importantly, life. 

Do you tend to agree that it is essential that we have in place 

some kind of procedures to make sure that people are not deprived 

of life? In this instance, absent some kind of an adequate procedure 

that can be used for determining whether somebody is in fact a terrorist leader? 

Professor SOMIN. Yes, I do agree and I think that is the central 

issue that I posed in my testimony and that some of the other witnesses have as well, is that if somebody really is a terrorist leader 

that is part of a group that is at war with us, then they are a legitimate target, even if they are not an imminent threat, as Professor Brooks said, even if they are sleeping in their bed. Osama 
34 

Bin Laden, I think, was asleep when he was targeted. But that did 

not make it an illegitimate attack. 

At the same time, we do need some procedures in place to ensure, particularly in the case of U.S. citizens, that we are in fact 

choosing the right people. I suggest a FISA-like court is one mechanism that can potentially be used. But also obviously there have to 

be in place procedures within the executive branch itself to try to 

minimize the risk of error in this respect. 

We cannot unfortunately in war have as much procedure as we 

would have in ordinary law enforcement. But that does not mean 

the issue should be just completely left up to the discretion of the 

President and his subordinates. 

Senator LEE. Do you have any indication as to how this administration believes that it should move forward? How it should go 

about making this kind of determination in a way that accords the 

appropriate degree of due process? 

Professor SOMIN. Some of the other witnesses may be more qualified than I am to speak to that question. I think the difficult issue 

is that so far the administration has not made public a lot of its 

procedures. So I join with all the many people who have already 

at this hearing stated that more publicity on this is desirable, obviously consistent with protecting classified intelligent sources and 

the like. 

Once we know more, we might be in a better position to assess 

whether the procedures are adequate or not. 

Senator LEE. All right. I appreciate that. I want to ask a question that I will give each of you an opportunity to answer. Given 

the time constraints we face you will have to be a little bit short. 

But why do we not start at the far end of the table and move back 

this way? 

My question is this. What do you think are the obstacles, the 

principal obstacles to providing for some kind of independent review, independent judicial review of the executive’s determination 

that a U.S. citizen is a terrorist leader and therefore potentially the 

subject of a lethal drone strike? We will start with you, General. 

General CARTWRIGHT. There are so many scenarios here that you 

could wander your mind through, but the challenge if you are in 

a declared area of hostility which is the basis of the questions that 

Senator Graham was asking, then you have a set of rules even associated with Americans that might be in that population of targetable people. 

It would be difficult to stop and have a court case for each one 

of them. When you are outside of an area of hostility, a declared 

area of hostility, then I think you have more leeway to have a discussion. 

I personally believe having a process on the back side, in other 

words an accountability process that says okay, we knew going in 

we had set up some rules. They may not have worked all the time, 

we may have made errors. 

Were errors made in this case? Should the victims, whether they 

be U.S. citizens or not, have been afforded more rights? Should 

they be compensated for the loss? What should happen at this 

stage of the game to address many of the questions like the Yemeni 

examples that we have heard today, rather than putting a court in 
35 

the middle of a war construct, which would I think have some constitutional issues. I defer. 

Senator LEE. Thank you. Professor. 

Professor BROOKS. Senator, I think that there are no obstacles to 

creating a more fair and transparent system for ensuring it, certainly with regard to U.S. citizens, that they are not wrongly targeted by their government based on misinformation. I think that 

all of the reassurances we have heard about the use of remotely piloted aircraft to ensure that we are getting the people we target 

and not innocent civilians are only as good as our intelligence, and 

they are only as wise as our strategy. 

That said, I think that the biggest political barrier that stands 

in the way of developing some better mechanism, judicial or otherwise, to ensure that we are targeting the right people based on a 

reliable process and a fair process and fair rules are that we tend 

to see this as a very black and white issue. There is war and there 

is crime and never the two shall meet and they are completely different legal systems with completely different rules. 

What we have here right now with globalized terrorism, both 

with Al-Qaeda and other kinds of groups, some of which are not affiliated with Al-Qaeda, is something that in many ways is like traditional armed conflicts and in many ways is more like large scale 

organized crime. That is just the reality. It has dimensions of both 

and requires both military tools at times and also tools that are 

more traditionally associated with intelligence and law enforcement 

like disrupting finance and communications. 

I think if we can get past that, right now we have a lot of people 

talking right past each other. We say in a war you can do this and 

everybody says, well, that is right, and you say, well, if you do not 

have a war you cannot do that, and everybody says that is right. 

But then the trouble is, we have a lot of difficulty deciding whether 

we should apply the war paradigm or the crime paradigm. 

Senator LEE. Well certainly you are not disputing that there are 

some bright lights that go on? 

Professor BROOKS. Absolutely. 

Senator LEE. Once you are talking about domestic soil, U.S. citizens. 

Professor BROOKS. Absolutely, Senator. On the extremes I think 

we have got a lot of pretty easy issues. It is in the middle that the 

issues get harder and we need to get more creative about developing hybrid legal mechanisms. 

Senator LEE. All right. Mr. Chairman, I just realized I have committed a grave error punishable by death within the Senate which 

is asking a question that is going to take me well over. Do you 

want me to rescind that part of the question for the rest of the 

panel? How do you want me to proceed? 

He just said to suspend the death penalty on this circumstance. 

I appreciate that. 

Professor SOMIN. Conscious of the sword of Damocles hanging 

over my head, I will try to be brief. I think there are two obstacles 

to ensuring a better system here. One is that we are necessarily 

relying on intelligence that in some cases is going to be iffy. Second, the review mechanism which I believe should be independent, 
36 

must nonetheless act reasonably swiftly. Otherwise we might lose 

the opportunity to attack a legitimate target. 

These are genuine problems but they are not insuperable. We 

have overcome them to a large extent with the FISA court. Scholars such as Amos Guiora of the University of Utah proposed ways 

to do it. And as he points out, the government of Israel does in fact 

have a review mechanism for their targeted killings and it has 

worked, at least in his view and that of other scholars, reasonably 

well over the years. 

I am not saying we can adopt the exact methods that they use. 

Obviously their situation and system of government is different 

from ours. But I think despite the difficulties, we can at least reduce the risk of error and increase the chance of limiting this to 

legitimate targets without losing the opportunity to attack genuine 

terrorists who are still out there. Thank you. 

Senator LEE. Thank you. Colonel. 

Colonel MCSALLY. I do believe the first effort needs to be more 

transparency in the process that we are using in order to identify 

somebody as an approved target. 

I will say if additional oversight does come in your role that is 

decided upon, I would encourage that it would be in the area of 

someone being an approved target, but not in the area of an approval to strike because when you get into that second area, sometimes it is moments, hours, days, weeks, months or even years before the stars line up that we meet all the criteria, we have identified the individual with the right collateral, low civilian casualties 

in the right geographic location with the right weapon. 

If that happens, it has got to be on the front end to name somebody on that target list outside of an area of active combat operations. 

Senator LEE. Limited perhaps to the finding that they are a terrorist leader. 

Colonel MCSALLY. Then you have to let the targeting process go. 

It is already painful enough to go up the chain of command to 

whatever level we have to, sometimes very high in the middle of 

someone already having been approved. They are already on the 

list and now you actually have to get additional approval to strike. 

Many times you lose the opportunity because too much time goes 

by and the target is fleeting. So any of that additional oversight 

needs to be on the front end and outside of our traditional combat 

operation areas. 

Senator LEE. All right. Thank you. 

Mr. Bergen. 

Mr. BERGEN. I think there would be an advantage as General 

Cartwright suggests in having a post factor review of CIA strikes. 

There would be a very concrete thing that could come out of this. 

As you know, when the U.S. military inadvertently kills civilians, 

we pay solatia payments to the victim’s family. You can imagine 

a post factor review of CIA drone strikes where there was civilian 

casualties. That would allow you to basically make the same kind 

of payment. After all, if it is a war and there are innocents killed, 

it does not matter where that takes place. 

We as a country have tended to compensate people when we can. 
37 

Mr. AL-MUSLIMI. To agree with that point, in the last few years 

since the strike drones and target killings have been used in 

Yemen, actually AQAB has been stronger, so it is very hard to 

think of how this can be actually made any good. 

But to make it less bad, I think one of the things that has to be 

done very fast is issue an apology to the civilians and pay compensation for the civilians’ relatives who were killed and more importantly, everywhere where the drone strike has killed civilians I 

think there has to be at least a sort of compensation to build a hospital or a school in a country that is lacking school or hospital. 

Senator LEE. All right. Thank you. Thank you very much. Thank 

you for your indulgence, Mr. Chairman. 

Chairman DURBIN. Thanks, Senator Lee. Mr. Al-Muslimi, do the 

people of Yemen know that we are there with the approval of the 

government of Yemen? 

Mr. AL-MUSLIMI. It is very hard to speak whether people know 

or do not know, but whether the government approve or does not 

approve, it is outside the big fancy walls of the capital, bringing a 

lot of problems, a lot of blow blacks. 

It is not an issue whether the government approves it or not. It 

is not an issue of sovereignty. It is much as this and the ground, 

it does not take rocket scientist to figure it out. It has been a problem I think more than it has any good. 

Chairman DURBIN. Before the drones, was AQAB viewed as a 

positive force in Yemen or a negative force? 

Mr. AL-MUSLIMI. We have spoke to every Yemeni—I have never 

met anyone who looks to AQAB as a positive entity ever. 

Chairman DURBIN. Thank you. General Cartwright, we have a 

divided responsibility when it comes to drones, forgive me, Colonel, 

I am going to continue to use that reference, between the CIA and 

the military, JSAC. 

Aside from the intramural conversation we might have about two 

different agencies, can you give me your opinion as to whether this 

is a good thing, a necessary thing, or whether it should be continued? 

General CARTWRIGHT. I think Colonel McSally will jump in on 

this, too. My experience, whether it be drones or other types of 

weapon systems, when you ask the military to conduct operations 

that are non-military, we generally have trouble because we train 

our people to do military operations. 

If you ask them to patrol the border, people oftentimes get killed 

that should not have been shot. If we are going to have the military 

participate in these types of operations for an extended period of 

time, more than just a one-off type mission, then we need to go 

back to some of the practices we probably had in the past associated with reconnaissance where we have specific units designated 

and equipped and trained and recruited to do that kind of operation and fund it. 

If that is what we are going to do, then that is what I would recommend. In other words, if you would like to have just one Air 

Force rather than two or three for the country for logistics reasons, 

for training reasons, et cetera, then it needs to be an Air Force that 

is capable of training a set of people for a specific type of mission 

that is not the same mission as an area of armed conflict. 
38 

Chairman DURBIN. I guess what I am driving at is this. I have 

been to one of our bases where the drones are launched and I have 

seen the intelligence gathering taking place. When it is done according to the book, and that is what I was told, it is a very painstaking, elaborate, lengthy evaluation of a site, a person, before the 

ultimate decision is made. Despite the tragic circumstances where 

innocent people are killed, and it has happened, every effort is 

made to avoid that to the extreme, as it should be, as Americans 

would insist that it be. 

I guess the basic question is whether or not the intelligence capacity which is so important in that process is different or better 

between the CIA and the military. Do you have an opinion? 

General CARTWRIGHT. If it is not inside of an area of hostility, 

it is in a country where we have not declared hostilities, then it 

is generally accepted that the agency has better intelligence and 

better ability to gather intelligence than the military does. 

That is under the current rules about who does what, where. 

Chairman DURBIN. Thank you. Mr. Bergen, one of the things 

that your New America Foundation has been involved in is some 

public opinion research about the impact of the drone strikes in 

Pakistan and Yemen. Could you tell me what you found? 

Mr. BERGEN. We did an independent poll in Pakistan’s Federal 

Tribal Area where all these drone strikes happen and we found 

overwhelming opposition to the drone strikes. 

If we asked the question if the Pakistani military was involved, 

would your opposition change, and the opposition goes down quite 

a lot if the Pakistani military was more involved. It is an issue of 

national sovereignty. 

We also found overwhelming opposition to Al-Qaeda and the 

Taliban and we asked the question if the Al-Qaeda or the Taliban 

were on the ballot, would you vote for them in an election and the 

answer was only 1 percent would. 

There has not been to my knowledge really good polling in 

Yemen on this issue. There is some public discontent, but it is 

nothing as far as I can tell anything on the scale of what it is in 

Pakistan, where it is really more about in my view the sovereignty 

issues than the civilian casualty issues. 

After all, their parliament in April voted to basically stop this. 

So you have got this very kind of confusing situation where the 

parliament has voted against this, yet it still proceeds. They have 

F–16s which could theoretically shoot these drones down but do 

not. So there is some sort of passive but tacit consent. 

Chairman DURBIN. That is exactly the point I want to go to with 

Professor Brooks and Somin with my last question. 

What I find different here is this definition of battlefield. I knew 

what we were voting for in 2001 when it came to Afghanistan. We 

were headed there, that is where Al-Qaeda was and they had just 

attacked the United States and we were going to answer that attack. 

I did not realize as I said and I do not think many Members did, 

that we would be having this conversation 12 years later about 

Yemen, Somalia, even Pakistan. Maybe I should have been able to 

discern that, but I did not. Maybe some did. 
39 

It appears now that we at least have to have tacit, passive, if not 

active approval before we are using these aircraft, these unmanned 

aerial aircraft before we engage the enemy. 

I take it the enemy is a lot of other places that we are not pursuing them. How does this work into this definition of battlefield 

and the Authorization for Use of Military Force? 

Professor BROOKS. Not very comfortably frankly, and that is why 

I emphasize that the deep problem is that we have got two legal 

paradigms that just do not fit the challenges we are faced with 

right now. 

To illustrate, you may remember, Senator, in 1976, Orlando 

Letelier, the former Chilean defense minister, who had been ousted 

in a military coup on Chile and imprisoned and tortured, who ultimately came to the United States and was outspoken against the 

Chilean military dictatorship. 

The Chilean military decided in the context of an ongoing insurgency in Chile that they did not like that very much and so Chilean intelligence operatives planted a car bomb in his car here in 

Washington, DC, killing him and his American citizen assistant, 

Ronni Moffit. 

Our government at the time called that murder, called that 

extrajudicial homicide. My concern right now is that we have, because of the gap between these two legal paradigms and the extreme secrecy and lack of transparency in which these decisions 

take place, right now if we could imagine that those circumstances 

occurred today, I would assume that the Chilean military government were it still extant would be saying to the United States, 

what is your objection? 

He is an enemy of the Chilean state, you were unwilling or unable to do anything about it. We asked you, you harbored him, and 

so we had to take matters into our own hands. If we said, well, we 

questioned your assessment that he was a combatant or that there 

is an armed conflict, they would reasonably reply, that is our decision to make and we do not have to tell you the basis on which 

we made it or anything else. 

My concern, my broad rule of law concern here is that we have 

essentially handed a playbook for abuse to oppressive governments 

around the world. We need to develop some middle ground that acknowledges that we are in a situation that is war-like in many 

ways but crime-like in other ways. I think we can do that. I think 

that is just a question of creativity. 

One final comment, if I may. It really goes to the strategic issue. 

When it comes to the strategic costs and benefits of this policy, unfortunately perceptions matter as much as reality, so while I very 

much agree with my colleagues that drones do not present novel 

legal issues, the reality is, as my colleagues have also suggested, 

the blowback is real. 

When we are taking into account the strategic costs, I think that 

is something unfortunately we have to consider just as much as the 

legal issues. 

Professor SOMIN. Just briefly on this issue. The AUMF as written 

actually does not contain a geographic limitation. Rather the limitation is based on the nations, organizations, or persons that the 

President determines planned, authorized, committed, or aided the 
40 

terrorist attacks that occurred on September 11. So it is not limited 

to Afghanistan or any other particular nation. 

It allows the President to attack these groups or individuals 

wherever they might be located. But as I said earlier, there is an 

important distinction between nations where the government either 

supports these groups or is unwilling or unable to do anything 

about them and nations where there is some reasonable rule of 

law. 

I think both legally and from a policy perspective, different measures are appropriate in different places. And obviously I entirely 

second what others have said that there might be cases where it 

is legally or even morally appropriate to use lethal force, but we 

might not want to do so out of policy considerations, whether 

blowback or other types of concerns. 

But the AUMF as such does not have a geographic constraint. 

Chairman DURBIN. I think many of us viewed that in terms of 

hot pursuit as opposed to a 12-year effort in far flung places where 

Al-Qaeda’s progeny would somehow appear. It was a little different 

time and place after 9/11 and now we are looking back at it from 

a different perspective. 

Senator Cruz. 

Senator CRUZ. Thank you, Mr. Chairman. I would like to first 

ask a question of General Cartwright and Colonel McSally. 

For counterterrorism purposes, what is the relative value of killing versus capturing a senior operational leader of Al-Qaeda and 

how is that assessed? 

General CARTWRIGHT. Again, I have to sit in the hypothetical 

here, but there is a progression of a terrorist organization generally 

looked at in three stages. One is recruiting and then you have an 

iconic figure. In that particular phase, eliminating that figure 

eliminates the movement. 

When you move into the second stage, it is generally considered, 

that is where you start to build a bench so to speak and if you kill 

one, another will come behind. In the third stage it is called franchising. They start to proliferate out and they have their own ability to generate. 

After you leave the first stage, separate political considerations, 

killing the leader has little value because he or she will be replaced. You may get a particularly capable one and it takes them 

awhile to recover, but generally it is considered in second and third 

stages killing the leaders does not really eliminate the movement. 

Chairman DURBIN. Colonel. 

Colonel MCSALLY. Sure. I will speak a little bit to the challenges 

if you do choose a capture mission over a kill mission as well. But 

it really does depend on the individual, the circumstances, and the 

location whether it is more desirable to kill or capture. 

But let us just say we are agreeing maybe you want to capture 

in more circumstances, then it does depend on the country we are 

talking about and the location. It goes back to the, is there consent 

or are they unwilling and unable or are you going to tip them off 

when you make that call? 

Let us say you then still decide we do need to do this capture 

mission. That can be a very complex operation. You are talking 

about bringing in special forces. As I mentioned, sometimes the in-
41 

telligence pops at a moment’s notice, so you could have them sitting at a base or offshore on a ship waiting for weeks or months 

unable to do other missions, waiting for the intelligence to come together. 

Then if you order them in, they may have to fight their way in 

and fight their way out, so there could be some extraordinary civilian casualties associated even with that mission if things go wrong. 

Then of course the reality that you then have the potential for 

U.S. casualties or U.S. individuals to then be captured and the 

strategic implications of that. So those are all the things that are 

weighed when you are considering even if you desire to do a capture mission, sometimes the bar is way too high and the risk is 

way too high and the cost is way too high both in time and opportunity costs for those particular special capabilities to do the capture. 

Senator CRUZ. Thank you. Mr. Bergen, how has in your opinion 

the Obama administration focused on targeted killings affected our 

ability to gather intelligence and analyze situations in the Middle 

East such as in Libya or Egypt? 

Mr. BERGEN. I think it is a very hard question to answer, sir, but 

I will make the factual observation that it was hard to predict the 

Egyptian revolution. Even the people involved did not know there 

was going to be a successful revolution. 

But the CIA did seem to have missed the fact that a quarter of 

the seats in parliament were taken by the Salafists who are now 

the second largest party in Egypt. 

At the end of the day, the CIA should be in the business of strategic warning to policymakers. That is ultimately what it should be 

doing. 

If it is the assessment of you and your colleagues that the CIA 

mission has been sort of deformed by the fact that it has become 

more a paramilitary organization, I think that is a problem. 

Senator CRUZ. Thank you. Now a question for Professor Somin. 

Do you see any tension between the Obama administration’s position that U.S. citizens who are captured aiding Al-Qaeda must be 

tried in Article III courts instead of military commissions but that 

nonetheless they can be summarily killed with drone strikes? 

Does that strike you as at all inconsistent? 

Professor SOMIN. I do not think it is inherently inconsistent in 

that when we capture somebody, if we consider somebody as an 

enemy combatant and if they really are a legitimate enemy combatant, then they can certainly be targeted. 

Once they are captured as an enemy combatant, I think the administration could choose as a matter of policy to try these individuals in Article III courts as opposed to doing so in military courts 

though I do not think it would necessarily be unconstitutional or 

illegal to go the military court route. 

I guess I would say that there is not an inherent contradiction 

unless the administration says not only that we are just choosing 

as a matter of policy to try certain enemy combatants in Article III 

courts, but actually claiming that it is never permissible to try such 

individuals in military courts which I think would probably not be 

correct. 
42 

Senator CRUZ. Would you agree that on any analysis it is a 

greater potential violation of someone’s rights to take their life 

than it is to capture and interrogate them? 

Professor SOMIN. In many cases I think that is true. But I do not 

think it is true categorically in that there could be a person who 

is a legitimate target and therefore can be killed on a battlefield, 

but if captured there are still legal limits on the methods we can 

use to interrogate them. For instance, we should not be able to engage in torture which is illegal under domestic and international 

law. 

Senator CRUZ. All right. Let me ask a question of Professor 

Somin and Professor Brooks. There has been some considerable discussion about the potential role of a FISA-like court dealing with 

either designating individuals as terrorist leaders or having some 

role in drone strikes. 

It strikes me that Senator Graham raised serious constitutional 

questions about the Article II role of the Commander in Chief and 

the appropriate ability of this Congress to restrict the decisions of 

the Commander in Chief directing military operations against foreign hostile forces. 

I would be interested in both of your assessments of those constitutional concerns and the right boundaries that would respect 

those constitutional concerns. 

Professor SOMIN. Certainly. I think everybody or almost everybody would agree that the President has important powers as Commander in Chief. At the same time, Congress has the authority 

under Article I to make rules for the government and regulation of 

the land and naval forces which I think includes the President 

when he is acting in his role as Commander in Chief. 

For instance, Congress does things like restrict the kind of weapons that can be used in a battlefield. It restricts the treatment of 

prisoners when they are captured and so forth. And therefore I 

think it is also permissible for Congress to require a certain 

amount of process before certain kinds of operations occur. 

I think Article I gives Congress that authority just as it gives it 

the authority to make the other kinds of regulations that I noted. 

Obviously the fact that Congress has authority does not mean that 

Congress should always exercise it to its fullest extent. Various 

scholars and others have talked about how to strike the right balance of independent review and how that should be done. 

Professor BROOKS. Senator, Congress also of course has the 

power to define and punish offenses against the laws of nations 

and that would also be a useful mechanism in this regard. 

The only thing I would add, though, is that it is a sort of ‘‘who 

guards the guardians’’ problem here. Clearly we all agree that if 

there were to be some future President who was, say, insane and 

who simply asserted that there was a war against some perfectly 

innocent group of people and that that justified the use of lethal 

force, we would wish there to be some mechanism short of impeachment to try to restrain that abuse of power. 

I think the question is—I do not think that the Commander in 

Chief power and the fact that the President obviously has a great 

deal of discretion when it comes to armed conflicts and foreign policy issues needs to necessarily restrain Congress from all oversight. 
43 

I think that you can certainly design a court, particularly if you 

focus on the after-the-fact review rather than the advance approval 

of targeting. I think you could certainly with relative ease devise 

a judicial process that would not pose any of those problems. 

Professor Somin mentioned earlier, and I think it is very instructive and worth reading for anyone who has not had the time to 

take a look at, the Israeli Supreme Court’s 2006 decision on targeted killings. It is a very similar legal system in many ways and 

obviously the challenges they face domestically with regard to terrorism are far greater than those we face, luckily for us, but that 

court resoundingly rejected the notion that these decisions were the 

question of whether a particular body of law applies in the first 

place to a particular body of facts, that is precisely the kind of decision that the judiciary and only the judiciary is normally considered to be qualified to make. 

Senator CRUZ. I would like to thank each of the six of you for 

very illuminating and insightful testimony and I would like to 

thank in particular Mr. Al-Muslimi for traveling a considerable distance of time and for presenting heartfelt and quite powerful testimony. I thank the Chairman for conducting this hearing. 

Chairman DURBIN. Thank you, Senator. 

Senator Lee. 

Senator LEE. Thank you very much. I just want to follow up on 

one issue with Professor Somin. You note that some have proposed 

developing an oversight court, something modeled after the FISA 

court, for example, that would be tasked with the responsibility of 

reviewing the executive’s determination about a U.S. citizen being 

a terrorist leader. 

Some naturally worry that such confidential courts operate without any kind of transparency, any kind of review so that much of 

what they do would be completely immune from any oversight from 

the public, from any kind of scrutiny. 

At the same time, others would argue that it necessarily makes 

a certain degree of sense to do that where you are dealing with so 

sensitive a determination as to whether or not a particular U.S. citizen is in fact a terrorist leader. 

I guess my question is if Congress were to agree with the recommendation to create such a court, a FISA-like court, how would 

you recommend that it go about the very delicate task of balancing 

on the one hand the need for a degree of confidentiality and on the 

other hand the need for the public to be able to understand what 

is happening on some level? 

Is there a way that you could perhaps separate those two out so 

that you could make them both harmonize? 

Professor SOMIN. I think it is a very important question. There 

may not be a way to find a perfect ideal balance. But there are actually many situations already in the legal system where national 

security information or evidence that may impinge on somebody’s 

privacy is held in camera by the court and is not publicized. But 

at the same time the court’s legal reasoning can be publicized both 

for review by higher courts and also for consideration by the public 

and outside experts. 

So it seems to me that while particular details of factual information or intelligence data can be held confidential, the court’s legal 
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reasoning does not have to be. Also the general standards that the 

court uses for approving or rejecting such requests can be made 

public, at least to a large extent. 

We do have experience with this with the FISA court, and with 

other cases dealing with other national security information. As 

Professor Brooks has noted, and I note it in my testimony, there 

is the experience of Israel in this regard as well. So we have a lot 

of models that we can potentially use to at least reduce this tension 

even if we cannot totally eliminate it. 

Senator LEE. Even if that means possibly bifurcating the proceedings or making some aspects of the determination public and 

others immune from any kind of transparency? 

Professor SOMIN. Yes, that is correct. We cannot have perfect 

transparency. But this system would still have at least somewhat 

more transparency than the current situation where these decisions are made almost entirely within the executive branch, often 

with no transparency at all. 

When it comes to transparency, I think the best should not be 

the enemy of the good. 

Senator LEE. Thank you very much. Thank you, Mr. Chairman. 

Chairman DURBIN. Thank you, Senator Lee, and thank you Senator Cruz and a special thanks to this panel for your patience and 

Mr. Al-Muslimi, thank you for your personal sacrifice in coming. 

Your testimony was extremely important to this hearing and we 

thank you so much for coming here today. Thanks to Mr. Bergen, 

Colonel McSally, Professor Somin, Professor Brooks and General 

Cartwright. Thank you very much for this. 

This was a long-anticipated hearing and the first of its kind in 

the Senate and I am sure not the last. There will be more that is 

going to be discussed. 

A number of groups have submitted testimony that will be added 

to the record without objection, including the American Civil Liberties Union and the Standard National, the Constitution Project, 

Human Rights First, Human Rights Watch, and the Open Society 

Foundations. Without objection, I will enter their statements in the 

record. 

[The information referred to appears as submissions for the 

record.] 

Chairman DURBIN. Then I want to take a point of personal privilege here to acknowledge a person in the audience. Hayne Yoon 

who is sitting in the second row here. She is currently a Deputy 

Federal Public Defender in Los Angeles, but she returned for this 

hearing because for the last 2 years she has been on detail to my 

office and served as counsel on this Constitution Subcommittee. 

Before she left, she helped to prepare today’s hearing. I hope we 

did well based on your standards and what you have asked us to 

consider. She has made many important contributions to our work, 

including improving coordination by Federal, State, and local law 

enforcement in apprehending international fugitives and planning 

the first ever congressional hearings on solitary confinement and 

the school-to-prison pipeline which were hearings we had previously. 

Hayne, thanks so much for your fine work. 
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The hearing record will be held open for 1 week to accept additional statements. Written questions for the witnesses might also 

be submitted. I ask that they be submitted by the close of business 

1 week from today. We will ask the witnesses to respond in a 

prompt fashion. 

If there are no further comments from the panel or from my colleagues, I thank the witnesses for attending and my colleagues for 

their participation and the hearing stands adjourned. 

[Whereupon, at 6:23 p.m., the Subcommittee was adjourned.] 

[Additional material submitted for the record follows.] 

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A P P E N D I X 

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