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DRONES AND THE WAR ON TERROR: WHEN 

CAN THE U.S. TARGET ALLEGED AMERICAN 

TERRORISTS OVERSEAS? 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED THIRTEENTH CONGRESS 

FIRST SESSION 

FEBRUARY 27, 2013 

Serial No. 113–2 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

STEVE CHABOT, Ohio 

SPENCER BACHUS, Alabama 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

MARK AMODEI, Nevada 

RAUL LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

GEORGE HOLDING, North Carolina 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

KEITH ROTHFUS, Pennsylvania 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DELBENE, Washington 

JOE GARCIA, Florida 

HAKEEM JEFFRIES, New York 

SHELLEY HUSBAND, Chief of Staff & General Counsel 

PERRY APELBAUM, Minority Staff Director & Chief Counsel 
(III) 

C O N T E N T S 

FEBRUARY 27, 2013 

Page 

OPENING STATEMENTS 

The Honorable Bob Goodlatte, a Representative in Congress from the State 

of Virginia, and Chairman, Committee on the Judiciary ................................. 1 

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Ranking Member, Committee on the Judiciary ......... 3 

WITNESSES 

John B. Bellinger, III, Partner, Arnold & Porter LLP 

Oral Testimony ..................................................................................................... 8 

Prepared Statement ............................................................................................. 10 

Robert Chesney, Charles I. Francis Professor in Law, Associate Dean for 

Academic Affairs, University of Texas School of Law 

Oral Testimony ..................................................................................................... 21 

Prepared Statement ............................................................................................. 23 

Benjamin Wittes, Senior Fellow, The Brookings Institution 

Oral Testimony ..................................................................................................... 35 

Prepared Statement ............................................................................................. 37 

Stephen I. Vladeck, Professor of Law, Associate Dean for Scholarship, American University Washington College of Law 

Oral Testimony ..................................................................................................... 54 

Prepared Statement ............................................................................................. 58 

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee 

on the Judiciary ................................................................................................... 4 

Prepared Statement of the Honorable Ted Poe, a Representative in Congress 

from the State of Texas, and Member, Committee on the Judiciary ............... 5 

Material submitted by the Honorable Ted Poe, a Representative in Congress 

from the State of Texas, and Member, Committee on the Judiciary ............... 86 

(1) 

DRONES AND THE WAR ON TERROR: WHEN 

CAN THE U.S. TARGET ALLEGED AMERICAN 

TERRORISTS OVERSEAS? 

WEDNESDAY, FEBRUARY 27, 2013 

HOUSE OF REPRESENTATIVES

COMMITTEE ON THE JUDICIARY

Washington, DC. 

The Committee met, pursuant to call, at 10:09 a.m., in room 

2141, Rayburn House Office Building, the Honorable Bob Goodlatte 

(Chairman of the Committee) presiding. 

Present: Representatives Goodlatte, Chabot, Issa, King, Franks, 

Gohmert, Jordan, Poe, Chaffetz, Marino, Gowdy, Labrador, Holding, Collins, DeSantis, Rothfus, Conyers, Nadler, Scott, Lofgren, 

Johnson, Pierluisi, Deutch, Bass, DelBene, and Garcia. 

Staff Present: (Majority) Shelley Husband, Chief of Staff & General Counsel; Branden Ritchie, Deputy Chief of Staff & Chief Counsel; Allison Halataei, Parliamentarian & General Counsel; Sam 

Ramer, Counsel; Kelsey Deterding, Clerk; (Minority) Perry 

Apelbaum, Staff Director & Chief Counsel; and Danielle Brown, 

Parliamentarian; and Aaron Hiller, Counsel. 

Mr. GOODLATTE. Good morning. The Judiciary Committee will 

come to order. 

Without objection, the Chair is authorized to declare recesses of 

the Committee at any time, and we welcome everyone to today’s 

hearing on ‘‘Drones and the War on Terror: When Can the U.S. 

Target Alleged American Terrorists Overseas?’’ 

I will recognize myself first for an opening statement. On February 4, 2013, a confidential Justice Department white paper outlining the legal justification for targeted killings of U.S. citizens 

overseas was leaked to NBC News. The leak of this white paper 

brought renewed attention to an issue largely ignored during President Obama’s tenure. Is the targeted killing of alleged American 

terrorists appropriate and under what circumstances? 

The white paper also confirms a palpable shift in war on terror 

policy by this President. In 2007, Barack Obama, the then-junior 

Senator from Illinois, laid out his position on the war on terror. ‘‘To 

build a better, freer world, we must first behave in ways that reflect the decency and aspirations of the American people. This 

means ending the practices of shipping away prisoners in the dead 

of night to be tortured in far-off countries, of detaining thousands 
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without charge or trial, of maintaining a network of secret prisons 

to jail people beyond the reach of the law.’’ 

The same President who opposes the detention of foreign terrorists, who opposes the use of enhanced interrogation techniques on 

foreign terrorists, and who attempted to bring foreign terrorists to 

trial in New York City is now personally approving the killing of 

Americans. Ironically, the detention facility in Guantanamo remains open, and Khalid Sheikh Mohammed and his co-conspirators 

are being tried before a military commission. 

Following the release of the white paper, a bipartisan group of 

Committee Members requested the opportunity to review the 

memos that formed the basis of the white paper. Our request was 

denied. 

One of President Obama’s first acts as President was to release 

the Bush Justice Department’s enhanced interrogation techniques 

memos to the public. But he now refuses to provide his Justice Department’s targeted killing memos not just to the public, but even 

to congressional overseers. We also invited the Justice Department 

to testify today. That request was denied, too. 

According to at least one estimate, drone strikes against suspected al-Qaeda terrorists have increased sixfold under the Obama 

administration. Anywhere from 2,500 to 4,000 people have been 

killed by these strikes. What is more, this Administration is not 

just targeting foreign fighters, but American citizens as well. 

President Obama ordered the killing of Anwar al-Awlaki, the 

American-born al-Qaeda cleric. In September of last year, U.S. 

forces killed al-Awlaki and his 16-year-old son in a drone strike in 

Yemen. America now knows the criteria used to nominate an 

American for targeted killing. 

The white paper sets forth a legal framework for when the U.S. 

Government can use lethal force against a U.S. citizen who is a 

senior operational leader of al-Qaeda or an associated force and is 

located in a foreign country outside the area of active hostilities. 

The Justice Department claims that in such a case, lethal force 

would be lawful where three conditions are met. 

An informed high-level official of the U.S. Government has determined that the targeted individual poses an imminent threat of 

violent attack against the United States. Two, capture is infeasible, 

and the United States continues to monitor whether capture becomes feasible. Three, the operation would be conducted in a manner consistent with principles of the laws of war. 

Today’s hearing will examine the Justice Department’s white 

paper and the constitutional issues surrounding the targeted killing of Americans overseas. We have assembled an impressive panel 

of experts to help the Committee analyze these important issues. 

Let me ask members of the staff to locate where that construction work is going on and ask them to allow us to conduct the hearing without the pain of drilling. 

The targeted killing of Americans overseas has ignited a debate 

about the breadth of a President’s commander-in-chief authority 

and the standard that should apply when targeting Americans. Is 

the white paper a fair reading of the law? Under what circumstances can the President decide to kill an American citizen? 

Is there any due process of law that must be granted before the 
3 

commander-in-chief can kill an American? Does the Administration’s approach comport with the law? Should the President be able 

to decide unilaterally to kill Americans? 

The American people deserve to know and understand the legal 

basis under which the Obama administration believes it can kill 

U.S. citizens and under what circumstances. Obviously, were the 

Justice Department memos made available or the Justice Department here to testify today, Members of the Committee could have 

a fuller understanding of the Administration’s legal rationale. However, today’s hearing will provide an initial public debate of the 

issue. 

And now it is my pleasure to recognize the Ranking Member of 

the Committee, the gentleman from Michigan, Mr. Conyers, for his 

opening statement. 

Mr. CONYERS. Thank you, Chairman Goodlatte and Members of 

the Committee and our distinguished witnesses present. 

We are here examining a pressing matter, namely the use of unmanned aerial vehicles, drones, to strike at suspected terrorists 

abroad. First, let us make clear the House Judiciary’s jurisdiction 

over the matter. 

These are serious constitutional considerations involved, and that 

is what this Committee has been created for, as well as civil rights 

questions, which are also involved in this operation. Our Committee has direct oversight of the Department of Justice, which has 

issued legal opinions, although classified, that purport to establish 

the legal basis for the use of lethal force against terrorist suspects. 

Now in the course of this issue that has been raised, numerous 

letters have been sent. And I want to point out that our latest one 

that was joined in with myself, Chairman Goodlatte, former Chairman Jim Sensenbrenner, Trent Franks, Jerry Nadler, and Bobby 

Scott, who wrote again to the President to renew our requests for 

all legal opinions related to drone programs. 

I am pleased that we reached a clear bipartisan consensus on 

this issue. This Committee requires those documents to fulfill its 

oversight responsibility. This isn’t a witch hunt. This is an inquiry, 

and we are all cleared for top secret. And we will work together 

to convince the Administration to satisfy our requests. 

Let us examine a couple issues here. Targeted strikes against 

United States citizens, targeted strikes generally, and three, the 

odious so-called signature strikes. Now the need for oversight is 

clear. I am not convinced, as the title of the hearing before us suggests, by the Administration’s legal rationale for the targeted killing of any United States citizen overseas. 

The white paper describes a balancing test for the Fourth 

Amendment, unlawful seizure of a person or a life, and the Fifth 

Amendment, due process, which is tilted so far in favor of Government interests that a potential target appears to have little chance 

at meaningful due process when he is nominated without his consent, of course, to the so-called kill list. 

I also remain unconvinced about the targeted killing of terrorist 

suspects who are non-citizens. Although the Administration appears to rest its claim of authority on the Authorization for Use of 

Military Force passed by the Congress in 2001, it is not clear that 

Congress intended to sanction lethal force against a loosely defined 
4 

enemy in an indefinite conflict with no borders or discernible end 

date. 

And I am considerably troubled by the widely reported use of socalled signature strikes, where suspects need only display suspicious activity, but their identities are unknown prior to the Government’s use of lethal force against them. That may be a CIA activity that should be sent over to the Defense Department, by the 

way. 

Today—and I rush to a conclusion—we want to accomplish the 

following. We need to know more, and I hope that the way that we 

conduct this hearing individually among our Members of the Committee will convince the Administration that this is not personal, 

nor political, and that all we are seeking is information to which 

we are duly entitled. We have one Committee on Intelligence that 

has gotten two reports out of a dozen or more? That is not acceptable. 

And with all due respect to an Administration that I support, we 

are creating a resentment on a visceral level, as General Stanley 

McChrystal has echoed, on a level that we can’t even begin to 

imagine. McChrystal was the architect of counterinsurgency in Afghanistan. 

‘‘The resentment created by the American use of unmanned 

strikes is much greater than the average American appreciates.’’ 

Well, I think we appreciate it, and I think that we want to have 

this become the first of a number of hearings. 

I conclude by saying I don’t think that the Attorney General of 

the United States can decline to come before this Committee on a 

subject that is so clearly within our jurisdiction, Mr. Chairman. 

And I yield back my time. 

Mr. GOODLATTE. I thank the gentleman for that expression of 

concern. I share it, and I will work with him and the other Members on his side of the aisle, as well as the other Members on our 

side of the aisle to see what we can do to bring about better cooperation because we are seeking information that this Committee 

is entitled to have. 

We have a very distinguished panel. Without objection, all the 

Members’ opening statements will be made a part of the record. 

[The prepared statement of Mr. Conyers follows:] 

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary 

Thank you, Mr. Chairman. I very much appreciate that our Committee is examining such a pressing matter: the use of unmanned aerial vehicles, or ‘‘drones,’’ to 

strike at suspected terrorists abroad. 

JURISDICTION

Let me be clear: the House Judiciary Committee has direct jurisdiction over this 

issue. 

We are the Committee in the best position to assess the serious constitutional and 

civil rights questions presented by the drone program. 

Our Committee also has direct oversight of the Department of Justice, which has 

issued legal opinions, albeit classified, that purport to establish the legal basis for 

the use of lethal force against terrorist suspects. 

Over the course of the 112th Congress, I, along with my colleagues Representatives Jerry Nadler and Bobby Scott, wrote several letters to Attorney General Eric 

Holder asking him to share those legal opinions with the Committee. 
5 

These letter requests were made on January 18, 2012, May 21, 2012, and December 4, 2012. 

Although we did not receive the requested memoranda, the Justice Department 

did provide us with a copy of the recently-publicized white paper on the targeted 

killing of U.S. citizens. 

Unfortunately, the white paper raises more questions than it answers, and does 

little to address our concerns regarding the broader use of lethal force against terrorist suspects. 

On February 8, 2013, Chairman Goodlatte and I, together with Representatives 

Jim Sensenbrenner, Trent Franks, Jerry Nadler, and Bobby Scott, wrote to President Obama to renew our request for all legal opinions related to the drone programs. 

I am pleased that we have reached a clear, bipartisan consensus on this issue: 

this Committee requires those documents to fulfill its oversight responsibilities, and 

we will work together to convince the Administration to satisfy our request. 

CONCERNS WITH THE DRONE PROGRAMS

The need for oversight is clear. I am not convinced, as the title of the hearing 

may suggest, by the Administration’s legal rationale for the targeted killing of a 

United States citizen overseas. 

The white paper describes a balancing test for Fourth and Fifth Amendment 

rights titled so far in favor of government interests that a potential target appears 

to have little chance at meaningful due process when he is nominated to the socalled ‘‘kill list.’’ 

I also remain unconvinced about the targeted killing of terrorist suspects who are 

non-citizens. 

Although the Administration appears to rest its claim of authority on the Authorization for Use of Military Force passed by Congress in 2001, it is not clear to me 

that Congress intended to sanction lethal force against a loosely-defined enemy in 

an indefinite conflict with no borders and no discernible end date. 

And I remain deeply troubled by the widely reported use of so-called ‘‘signature 

strikes,’’ where suspects display suspicious activity but their identities are unknown 

prior to the government’s use of lethal force against them. 

To date, the Administration has not even acknowledged that this program exists—let alone provided this Committee with the information it requires to examine 

the legality of the program. 

GLOBAL CONCERNS

I am, of course, aware that drones offer a relatively precise means for targeting 

our enemies. If used responsibly, they can limit civilian casualties and do so without 

putting additional American troops in danger. 

But we must be mindful that the rest of the world is watching us. In a recent 

interview, General Stanley McChrystal—the principal architect of U.S. 

counterinsurgency strategy in Afghanistan—reminded us that ‘‘the resentment created by American use of unmanned strikes . . . is much greater than the average 

American appreciates.’’ 

He continued, ‘‘They are hated on a visceral level, even by people who have never 

seen one or seen the effects of one.’’ 

No matter how far removed we are from the battlefield, we must remember that 

it still feels like war when missiles strike. 

And, the United States will not be the only nation with this tactical capability 

for much longer. 

Accordingly, the decisions we make—the process this Committee finds necessary 

before our government may lawfully kill a suspected terrorist, whether or not that 

suspect is a citizen—will set the example for those who follow. 

I thank the Chairman, and I yield back. 

[The prepared statement of Mr. Poe follows:] 

Prepared Statement of the Honorable Ted Poe, a Representative in Congress from the State of Texas, and Member, Committee on the Judiciary 

Today’s hearing deals with one of the most important issues we face here in Congress, the question of when and where our Constitutional rights apply as Americans. We are here today because the Department of Justice has so far repeatedly 
6 

refused to provide Congress with the legal and constitutional justifications that they 

use to authorize the killing of a U.S. citizen who is abroad and allegedly a member 

of al-Qaeda or an associated force. The House Judiciary committee has requested 

this information, and it has been denied by the Department of Justice. Congressman 

Gowdy and I have written two letters to the Department of Justice requesting details on this justification and the Department of Justice has not answered us. The 

first letter was sent nearly three months ago. And, I would like to note, the Department of Justice is not here to testify today. 

In fact, we are left to try and make sense of a vague outline from the DOJ white 

paper that was ‘‘leaked’’ to the media that lethal force is authorized if: 

1. An informed, high-level official of the U.S. government has determined that 

the targeted individual poses an imminent threat of violent attack against 

the United States; 

2. Capture is infeasible, and the United States continues to monitor whether 

capture becomes feasible; 

3. The operation would be conducted in a manner consistent with applicable 

law of war principles. 

But these guidelines leave us with more questions than answers. 

• Who is a ‘‘high level official’’? Who is this individual accountable to? 

• What intelligence do they rely on? Does there have to be multiple sources? 

What if the intelligence is wrong? 

• If targeted assassinations are outlawed under Executive Order 12333, how 

does a drone strike differ from a targeted assassination? 

And then, there is the question of whether or not this legal interpretation could 

involve suspected terrorists in the United States. So far, the Administration’s response has been they have ‘‘no plans’’ for the use of targeted drone strikes within 

the United States but that seems to at least leave open the possibility. 

What about suspects in Mexico? France? Or other countries we are allies with? 

Is the Government permitted to target a U.S. Citizen anywhere in the world? Under 

this justification, does it mean that the Constitution no longer applies when a ‘‘high 

ranking official’’ determines that somebody is a terrorist? Should this ‘‘high ranking 

official’’ act as Judge, Jury and Executioner all at once? Don’t get me wrong, if an 

American citizen decides to join al-Qaeda and takes arms up against the United 

States, they deserve whatever is coming to them, however shouldn’t we have some 

sort of judicial review to look at the evidence to make sure we have the facts 

straight? After all, intelligence is sometimes wrong. That is the point of judicial review. Shouldn’t we be 100% sure that this individual actually did join al-Qaeda? Not 

every case is going to be as clear as the Anwar al-Aulaqi case. Does it make sense 

to have a higher legal standard in order to listen to American’s phone calls abroad 

then to target and kill that individual? (FISA court) These are all questions that 

Congress needs to weigh in on and that’s why the Department of Justice needs to 

give us the information we have requested. 

Mr. GOODLATTE. And we will turn now to our panel. We have a 

very distinguished panel joining us today, and I will begin by introducing the witnesses. 

Our first witness is Mr. John Bellinger, a partner at Arnold & 

Porter LLP, a law firm here in Washington, D.C., where he advises 

sovereign governments and U.S. and foreign companies on a variety of international law and U.S. national security law issues. 

Mr. Bellinger is also an Adjunct Senior Fellow in International 

and National Security Law at the Council on Foreign Relations, 

where he directs the Program on International Justice. He served 

as the Legal Adviser for the U.S. Department of State under Sec-
7 

retary of State, Condoleeza Rice, from April 2005 to January 2009, 

earning the Secretary of State’s Distinguished Service Award. 

Mr. Bellinger received his Bachelor’s degree from the Woodrow 

Wilson School of Public and International Affairs at Princeton University, his J.D. from Harvard Law, and most recently, a Master’s 

degree in Foreign Affairs from the University of Virginia. We are 

fortunate to have him and his expertise with us today. 

Our second witness today is Professor Robert Chesney, the 

Charles I. Francis Professor in Law and Associate Dean for Academic Affairs at the University of Texas School of Law. Professor 

Chesney specializes in a broad range of issues regarding U.S. national security law, such as military detention, the role of the judiciary in national security affairs, and terrorism-related prosecutions. He is a nonresident Senior Fellow of the Brookings Institution, as well as a team member of the Council on Foreign Relations. Previously, he served on President Obama’s Detention Policy 

Task Force. 

Mr. Chesney earned his Bachelor’s degree in Political Science 

and Psychology from Texas Christian University and subsequently 

graduated Magna Cum Laude from Harvard Law School. We welcome his experience and expertise. 

The third member of our witness panel is Mr. Benjamin Wittes, 

a Senior Fellow in Governance Studies at the Brookings Institution 

and co-director of the Harvard Law School Brookings Project on 

Law and Security. He is the author of ‘‘Law and the Long War: The 

Future of Justice in the Age of Terror,’’ published in June 2008, 

and the editor of the 2009 Brookings book, ‘‘Legislating the War on 

Terror: An Agenda for Reform.’’ 

Mr. Wittes co-founded and is editor-in-chief of the Lawfare Blog, 

a nonideological discussion of ‘‘Hard National Security Choices.’’ 

Between 1997 and 2006, he served as an editorial writer for The 

Washington Post, specializing in legal affairs. Mr. Wittes is also an 

alumnus of Oberlin College. We thank him for serving as a witness 

today and look forward to his insight into this complex topic. 

Our final witness is Mr. Stephen Vladeck, a law professor from 

American University Washington College of Law, teaching courses 

in Constitutional Law, Federal Courts, International Criminal 

Law, and National Security Law, to name just a few. He is also a 

Fellow at the Center for National Security at the Fordham University School of Law in New York City. Mr. Vladeck has co-authored 

multiple legal textbooks and has served as a Law Clerk of appellate judges in both Florida and California. 

He earned his Bachelor’s degree in History and Mathematics 

from Amherst College and his J.D. from Yale, where he served as 

the Executive Editor of the Yale Law Journal. We are pleased to 

have him with us today. 

We thank all of you for joining us. And Mr. Bellinger, we will 

started with you. Each witness has written statements that will be 

made a part of the record in their entirety. I ask that each witness 

summarize his or her testimony in 5 minutes or less. 

To help you stay within that time, there is a timing light on your 

table. When the light switches from green to yellow, you will have 

1 minute to conclude your testimony. When the light turns red, it 

signals that the witness’ 5 minutes have expired. 
8 

Mr. Bellinger, welcome. 

TESTIMONY OF JOHN B. BELLINGER, III, PARTNER, 

ARNOLD & PORTER LLP 

Mr. BELLINGER. There we go. Thanks very much, Mr. Chairman 

and Members of the Committee, for coming for this important hearing today. 

I dealt, as you heard, with many of the legal issues that are the 

subject of today’s hearing when I served as the legal adviser for the 

National Security Council in the White House in the first term of 

the Bush administration. And then I was the legal adviser for the 

State Department in the second term of the Bush administration. 

I was in the White House situation room on 9/11 and spent all 8 

years of my time dealing with many of these same issues. 

Now both the Bush and the Obama administrations have concluded that the targeted killing of al-Qaeda leaders is lawful under 

both U.S. and international law under certain circumstances. Let 

me start with U.S. law. 

The President’s legal authority derives from the Authorization to 

Use Military Force Act of September 18, 2001, the AUMF, and also 

from the U.S. Constitution. The problem is the AUMF is now nearly 12 years old, and Congress should update it. It does not provide 

sufficient legislative authority for our military and intelligence personnel to conduct the operations necessary to defend against the 

terrorist threats that we face a decade after 9/11. And it also contains inadequate protections for those targeted or detained, including U.S. citizens. 

Of course, in addition to the statutory authority granted by Congress, the President also has broad authority under the Constitution to take necessary actions to defend the United States against 

terrorist threats. 

The targeted killing of American citizens raises additional legal 

issues because U.S. citizens have certain constitutional rights 

under the Fourth and Fifth Amendments of the Constitution even 

when they are outside the United States. But the extent of those 

rights is not clear. No U.S. court has previously opined on the issue 

of what amount of process is due to an American outside the 

United States before being targeted by his own government. 

Now I agree with the principal conclusions of the Justice Department white paper that reportedly summarizes the laws applicable 

to killing an American citizen who is a senior operational al-Qaeda 

leader. In particular, I agree that an American citizen who is a senior al-Qaeda leader outside the United States does enjoy constitutional right to due process. But I also agree that it is sufficient due 

process for a senior informed Government official to conclude that 

the individual poses an imminent threat of violence against the 

United States before targeting the individual with lethal force. 

I do not believe that prior judicial review is currently required 

or should it be required before the U.S. Government uses lethal 

force against an American citizen who is a senior al-Qaeda leader 

outside the United States. Now relevant to this Committee, the 

Congress may still want to specify the conditions and certain processes for targeting an American, and this Committee may want to 
9 

consider legislation on this issue. But these processes should reside 

inside the executive branch with appropriate notice to Congress. 

Now both the Bush and Obama administrations have also concluded that international law permits the United States to use 

force through drone strikes or other means to kill al-Qaeda leaders 

in other countries in certain circumstances, and I want to emphasize that it is important for the United States to follow international legal rules rather than use force arbitrarily. 

The executive branch and Congress need to be aware that what 

is sauce for the goose is sauce for the gander. Unless the U.S. Government specifies clear international rules with which it is complying, the U.S. will lack credibility if it criticizes other countries, 

such as Russia or China, who may use drones to conduct targeted 

killings with which the U.S. disagrees. 

Now other countries, including many of our close allies, are growing increasingly alarmed by the large number of U.S. drone strikes, 

which reportedly have killed many civilians. The U.S. has a strong 

interest in demonstrating to our allies that its drone strikes are 

consistent with international law. Because if allies conclude that 

drone strikes violate international law or, worse, are war crimes, 

they are likely to stop sharing targeting information and may cease 

other forms of counterterrorism cooperation. 

So if the Obama administration wants to avoid losing the intelligence support of its allies, Administration officials need to work 

harder to explain and defend the legality of this program. The 

speeches given by Administration officials have been very valuable, 

but the Administration needs to do more to address growing international opposition to its use of drones. And the Administration 

needs to be more transparent about who it is targeting and the procedures it applies to ensure that its targets are appropriate and to 

limit collateral damage to civilians. 

I think the Obama administration should be able to release after 

the fact the names and background information of at least some of 

the people it has targeted. The release of more information should 

help address the concerns that U.S. targets individuals who do not 

pose significant threats. 

So, in closing, I want to commend this Committee for holding 

this hearing, and I want to end with a plea for more bipartisanship 

on counterterrorism issues. Republicans and Democrats will not always agree on the same approach to dealing with terrorism, but 

these issues should not be used to divide the American people. We 

all face a common threat from terrorism, and we need to work 

harder to find bipartisan solutions to these difficult problems. 

Thank you, Mr. Chairman. 

[The prepared statement of Mr. Bellinger follows:] 
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Mr. GOODLATTE. Thank you, Mr. Bellinger. 

Mr. Chesney, welcome. 
21 

TESTIMONY OF ROBERT CHESNEY, CHARLES I. FRANCIS PROFESSOR IN LAW, ASSOCIATE DEAN FOR ACADEMIC AFFAIRS, 

UNIVERSITY OF TEXAS SCHOOL OF LAW 

Mr. CHESNEY. Thank you, Mr. Chairman. Thank you, distinguished Members of the Committee, for the opportunity to be here 

to testify today. 

Mr. GOODLATTE. Pull it close. 

Mr. CHESNEY. Thank you. 

Let me come straight to the point. The Constitution does not require judicial process in the narrow circumstances at issue here 

today for the reasons Mr. Bellinger just stated and stated in the 

white paper. However, I believe that a limited and carefully calibrated judicial role would be permissible as a constitutional matter 

and desirable as a matter of policy. So how might this be the case? 

You need to bear in mind that there are two very distinct scenarios that arise when the Government uses lethal force in a targeted manner. The classic scenario that comes readily to mind for 

most of us when we talk about armed conflict is that of a soldier 

in the field who encounters a situation that requires an instant 

judgment as to whether someone is an enemy, whether a shot 

should be taken. 

Judicial involvement at that stage would, of course, be grossly 

impractical. It would be contrary to tradition. I think that is relatively common ground. But that is not the end of the story. 

We are speaking this morning exclusively of a situation in which 

the Government is intentionally targeting a specifically identified 

person. Unlike the classic armed conflict scenario I just described, 

the scenario actually at issue here is a two-stage process with very 

different questions at issue and very different exigencies at different points in time. 

Now, for better or worse, there have been a flood of leaks that 

give us a fair sense of how this process actually unfolds currently. 

At stage one, the question is whether the available intelligence suffices to establish that the nominated individual is notionally within 

the scope of the Government’s asserted targeting authority. If so, 

that opens the door to the possible use of force later on, should that 

person be located. 

Stage two arrives only later, if and when the target actually is 

located. Now at that point in time, sensitive questions do arise as 

to whether, for example, the person that is being observed is, in 

fact, that nominated target and then whether the circumstances 

would allow for a particular attack to be lawful and desirable. My 

point is that stage two is akin to the classic time-sensitive scenario 

I first described, but stage one is quite different. 

Indeed, it is no accident that based on the public reporting of 

what actually takes place within the Obama administration at 

stage one, it in many ways resembles a judicial process already. 

Dossiers of information are assembled. They are put before a group 

for debate and discussion. Multiple parties weigh in in debate 

what, if anything, the intelligence suffices to prove. And debates 

take place regarding the notional legal boundaries of the Government’s targeting authority. 

The point is judicial involvement at stage one would be relatively 

much less intrusive, much less unconventional than it would be at 
22 

stage two. And while I do not think it is possible to say that the 

Fifth Amendment due process clause clearly requires adoption of a 

system for review of these stage one issues, and while I rush to add 

that, of course, there is no current way to get that review—not unless and until Congress acts—I do think that the due process interests of the individuals involved, who, after all, may not actually be 

senior operational al-Qaeda leaders after all, it suffices to counterbalance the competing Article II concerns that a proposal for judicial review at stage one would otherwise raise or would raise. 

Now let me clarify precisely what it is I think a judge could properly be asked to do in this so-called stage one review. There are 

really two elements to this. One task would be to confirm or clarify 

the law with respect to notionally which U.S. persons could be targeted. This could result in affirmation of the white paper’s position 

and the Attorney General’s prior speech on this subject. Perhaps it 

would result in a narrower view or a broader view, but a judge 

could make that determination. 

Whatever the result of that substantive legal inquiry, the court’s 

core task, of course, would be to determine whether the information 

that has been put forward to suggest that a particular American 

is within the scope of that authority actually is sufficient to that 

task. Now if the category is defined simply in terms of membership 

in the enemy force, which is effectively what goes on at the Guantanamo habeas proceedings currently, the court would be able to 

consider that question. It is the sort of question courts have been 

grappling with in the habeas process for the past 4 years. 

If, instead, the test is something along the lines of the white 

paper test, it would be more complicated. Certainly, the court at 

that stage could consider the person’s organizational links, position 

in the organization. 

As to imminence, which, of course, is a central part of the white 

paper test, if you met a strict temporal definition of imminence, 

which is now what the white paper is talking about, that sounds 

like a stage two determination that can only be decided at a time 

exigent moment. But of course, the white paper describes a form 

of imminence that is probably better thought of as constant and 

continuing organizational commitment to attack. That could be assessed at stage one. 

Feasibility of capture, in contrast, is a stage two issue, not something that judges could appropriately intervene with or review at 

stage one. 

I am out of time. So I will close simply by quickly noting that 

there is an objection that comes from a different direction to this 

proposal, and that would be that the Article III jurisdiction of the 

courts could not extend to a situation like this, which would be an 

ex parte proceeding. It would be a significant issue. It is not obvious that the courts have the power to do this. 

However, I think that the analogy to the FISA system actually 

is a good one. I know that we will hear more about this in a moment from my colleague Professor Vladeck. Suffice to say that in 

the FISA context, there is very little actual prospect of adversarial 

testing of the FISA orders that are issued. In the end, it rarely 

happens, and when it does, it is always done on an ex parte basis 

anyways. 
23 

Thanks for your patience, and I look forward to answering your 

questions. 

[The prepared statement of Mr. Chesney follows:] 
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Mr. GOODLATTE. Thank you, Mr. Chesney. 

Mr. Wittes, thank you very much. 
35 

TESTIMONY OF BENJAMIN WITTES, SENIOR FELLOW, 

THE BROOKINGS INSTITUTION 

Mr. WITTES. Thank you, Mr. Chairman, Members of the Committee, for inviting me to testify on the question of when the 

United States may lawfully target alleged American terrorists overseas. 

I want to explain and defend the legal rationale underlying the 

Administration’s lethal targeting of a U.S. citizen in the narrow circumstances of a person who is abroad and believed to be a senior 

operational leader of al-Qaeda or its associated forces. The ability 

to kill one of its own citizens is one of the most awesome and terrifying powers a people can vest in its government, and the power 

to do this without judicial check is certainly anomalous in a society 

that provides for judicial review of countless lesser exertions of government power. 

As Federal District Judge John D. Bates, who presided over the 

al-Awlaki case, wrote, ‘‘How is it that judicial approval is required 

when the United States decides to target a U.S. citizen overseas for 

electronic surveillance, but that according to the Government, judicial scrutiny is prohibited when the United States decides to target 

a U.S. citizen overseas for death?’’ 

Yet there is something equally terrifying, I would suggest more 

terrifying, about a government unwilling, as a consequence of its 

own legal views, to protect its people from ongoing threats of attack 

from its citizens overseas. In dealing with major al-Qaeda figures 

overseas who hold American citizenship therefore, the Obama administration has, therefore, confronted a slippery slope with not 

one, but two distinct bottoms. 

Down one side lies a Government empowered to do terrible 

things without sufficient legal justification or oversight. Down the 

other side lies a Government powerless to confront very real 

threats to the safety and lives of its citizens while terrorist figures 

operate with impunity from sanctuaries in ungoverned spaces. It is 

not enough to avoid sliding down one of these slippery slopes. U.S. 

policy must avoid both. 

With that as background, let us consider for a moment the targeting powers that the Obama administration is not claiming with 

respect to Americans overseas who affiliate themselves with the 

enemy. It is not claiming the authority to target any such American citizen, only an American citizen who is a senior operational 

leader of al-Qaeda or one of its co-belligerent forces. It is not claiming the authority to target even such a senior operational terrorist 

if his capture is a feasible alternative. 

It is not claiming the authority to target an American citizen 

who poses no imminent threat to American lives, and it is not 

claiming the authority to act without compliance with the laws of 

war. Given this rather restrictive posture, it is not surprising there 

is only one reported case of U.S. forces actively targeting a specific 

American citizen with lethal force. 

The Administration’s view of this matter has four subsidiary 

components, each of them, in my view, clearly correct. First, the 

United States is in a state of armed conflict with al-Qaeda, the 

Taliban, and its associated forces. Second, in this armed conflict— 

as, indeed, in any armed conflict—the United States is lawfully en-
36 

titled to target the enemy with lethal force. Third, there exists no 

general immunity from targeting for U.S. citizens who sign up to 

wage war against their own country. And fourth, whatever the 

Constitution’s due process guarantees may require before targeting 

a U.S. citizen, these requirements are more than satisfied by a rigorous judgment that a person like Anwar al-Awlaki meets the Administration’s narrow test for targeting. 

To understand why this position must be correct, consider a domestic hostage situation. In such a situation, even law enforcement 

will use targeted killings, and it will do so without judicial 

preapproval when the threat to the lives of the hostages is adequately serious. Nobody takes the position that such actions constitute unlawful extrajudicial killings. I submit that the case that 

truly meets the Administration’s legal test, like Anwar al-Awlaki, 

is not profoundly different from this hostage situation. 

Now a mounting chorus of critics has insisted that judicial review must be a feature of the legal framework that authorizes the 

targeting of American nationals. Whatever the merits of proposals 

to create judicial review mechanisms, and this is an extremely difficult question, one point is very clear. Current law simply does not 

provide for prospective judicial involvement in targeting decisions. 

It is, therefore, hard to fault Attorney General Holder for having 

failed to bring the Anwar al-Awlaki case for prospective review before a court that does not exist. 

In summary, the Obama administration has taken a measured 

and serious position concerning the targeting of Americans overseas, one that reserves the right to target in the most extreme 

cases while leaving open the question of the minimum criteria for 

targeting to be lawful in less dire circumstances. It is a position 

that is neither radical, nor surprising, and it ought not raise concerns that the Administration is claiming undue presidential 

power. 

Thank you for this opportunity to share my views on this important subject. I look forward to your questions. 

[The prepared statement of Mr. Wittes follows:] 
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Mr. GOODLATTE. Thank you, Mr. Wittes. 

Mr. Vladeck, welcome. 

TESTIMONY OF STEPHEN I. VLADECK, PROFESSOR OF LAW, 

ASSOCIATE DEAN FOR SCHOLARSHIP, AMERICAN UNIVERSITY WASHINGTON COLLEGE OF LAW 

Mr. VLADECK. Thank you, Mr. Chairman, Members of the Committee. It is a pleasure to be back before you again. 

I want to start from where Mr. Wittes left off, which is that I 

do think, although we might disagree about the actual cir-
55 

cumstances, we would all agree that there are some circumstances 

where the Government is allowed to use lethal force, even against 

its own citizens. That is not to say that this is a good thing. It is 

not to say that it is something we should be happy or proud about. 

But it is something, I think, that is an important starting point for 

this conversation. 

So, in that regard, the question really isn’t whether the Government has the power to use this kind of force, it is when. And that 

is why I think so much of the statements you have heard already 

today, so much of the focus among commentators, has been on this 

judicial review question. 

Not as a sideshow, not because judicial review is somehow a 

proxy for the larger conversation, but because the real concern is, 

are these operations being carried out in a manner that actually 

passes legal scrutiny? Put another way, how can we be sure, given 

the pervasive secrecy that surrounds these operations, that the circumstances, the criteria, whatever the law that we believe to exist 

is, has actually been satisfied in an individual case? 

And indeed, in this regard, Mr. Chairman, the white paper is curiously silent. It suggests that ex ante judicial review would not be 

really workable for reasons that my friend and colleague Professor 

Chesney has alluded to. And I actually don’t disagree that there 

are concerns that would arise from ex ante review. 

But what I would like to do in my remarks today and what I do 

in more detail in my written testimony is explain how Congress 

could, in fact, provide a far clearer, far less problematic remedy 

that would allow these issues, these questions to be resolved by 

judges by creating a cause of action for damages after the fact. Indeed, to my mind, the only answer to the hard questions raised by 

targeted killings are for Congress to allow courts to intervene, not 

beforehand, but afterwards, just as courts do when our law enforcement officers use lethal force in those exceptional circumstances 

where they feel compelled to do so. 

So let me briefly explain how this could work using the various 

examples that this Committee is well familiar with to illuminate. 

First, with regard to creating a cause of action, as this Committee 

knows, when Congress enacted the Foreign Intelligence Surveillance Act in 1978, one of the provisions it included was an express 

cause of action. Even for a secret surveillance program, even where 

most of these determinations are made behind closed doors and ex 

parte, Section 1810 of Title 50 provides a cause of action for damages. It provides even for attorneys fees, although I wouldn’t get 

that excited at that point in the proposal. 

And so, we have this model in FISA for Congress providing retrospective damages even for presumably secret governmental operations. 

There would still be other potential procedural obstacles that 

would get in the way. So, for example, the state secrets privilege 

that the Obama administration has followed its predecessors in 

routinely invoking in these kinds of cases. But as this Committee 

knows, there have been various proposals floated in Congress in 

the last 4 or 5 years to curtail the state secrets privilege. For example, the State Secrets Protection Act that was proposed in 2009. 
56 

Whether you follow the model of the State Secrets Protection Act 

or not, it certainly would be easy for Congress by statute to provide 

procedures pursuant to which these issues could be resolved while 

protecting governmental secrecy. One could model those procedures 

after the Classified Information Procedures Act, which this Congress passed to apply to criminal prosecutions involving classified 

information. 

One could also look, Mr. Chairman, to the Guantanamo habeas 

cases where the courts have actually fashioned an ad hoc form of 

the Classified Information Procedures Act to allow for those disputes to be resolved even with classified evidence. And the model 

for that is not to allow the individual litigants to always see the 

evidence, but to have security-cleared counsel who, so far as we 

know, have to date not disclosed a single item of classified information as part of the Guantanamo hearings. 

You also have questions about official or sovereign immunity. 

But Congress in 1988 in the Westfall Act provided a way around 

that for certain tort claims against the Federal Government, 

whereby the statute Congress immunizes Federal officers and substitutes the Federal Government as the defendant any time an operation that falls within the scope of the cause of the action is carried out within the scope of that officer’s employment. This could 

certainly be followed here. 

Now this begs the harder question, what exactly would courts be 

reviewing on the merits? And I think, Mr. Chairman, we could 

have four or five hearings at the least to answer that question. Let 

me just start from the proposition, though, that this is a question 

courts are not completely incompetent at handling. 

In the context of law enforcement operations, courts routinely 

look backwards after a lethal use of force to decide whether the officer reasonably feared for his life or for the life of third persons. 

Courts routinely look at the circumstances through hindsight, even 

though there are concerns about hindsight bias. 

And so, I think if we could reach some consensus, Mr. Chairman, 

on how to actually resolve these claims on what the law should be 

going forward, it would not be that hard to empower courts with 

the benefit of hindsight to entertain these kinds of claims. 

Now in his concurrence in the famous decision in the Steel Seizure case, Justice Frankfurter suggested that the accretion of dangerous power does not come in a day. It does come, however, slowly 

from the generative force of unchecked disregard of the restrictions 

that fence in even the most disinterested assertion of authority. 

It seems to me, Mr. Chairman, that targeted killing operations 

by the executive branch present the legislature with two realistic 

choices. Congress could accept with minimal scrutiny or oversight 

the executive branch’s claims that these operations are, in fact, carried out lawfully and with every relevant procedural safeguard to 

maximize their accuracy and, thereby, open the door to the unchecked disregard of which Justice Frankfurter warned. 

Or Congress could require the Government to defend these assertions in individual cases before a neutral magistrate invested with 

the independence guaranteed by the Constitution’s salary and tenure protections. So long as the Government’s interest in secrecy are 

adequately protected in such proceedings and so long as these oper-
57 

ations really are consistent with the Constitution and laws of the 

United States, what does the Government have to hide? 

Now, in closing, Mr. Chairman, I just want to make one last 

point. As Mr. Wittes suggested, there has only been one reported 

case of an operation that specifically targeted a U.S. citizen. If the 

reports are to be believed, there are only three U.S. citizens who 

have, in fact, been killed in these operations. 

But if one listens to Senator Graham, who, given his role on the 

Intelligence Committee, would know, there are as many as 4,700 

casualties, 4,700 people who have been killed by American drone 

strikes. I am sure many of those strikes were legal. It is possible 

most of those strikes were legal. But I think it is important to keep 

in mind that as we talk about drones and accountability for the 

Government, we are not just talking about Anwar al-Awlaki. 

Thank you, Mr. Chairman. I look forward to your questions. 

[The prepared statement of Mr. Vladeck follows:] 
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Mr. GOODLATTE. Thank you, Mr. Vladeck. 

Thank you all for very good testimony. I will begin the questioning with you, Mr. Bellinger. 

The Administration’s white paper tries to establish that where 

an American citizen who is a ‘‘senior operational leader of an al- 
70 

Qaeda—or an al-Qaeda leader or an associate force of al-Qaeda 

poses an imminent threat, the capture is—and capture is not feasible,’’ the U.S. can target and kill him. According to the white 

paper, imminent threat and the feasibility of capture are not well 

defined. 

Do you see any problems with the lack of specifics in these definitions? 

Mr. BELLINGER. Well, thanks, Mr. Chairman. 

Of course, the white paper is a summary, a 15-page summary of 

what apparently is a much longer legal opinion. And as you have 

explained, most Members of Congress have not seen the entire 

legal opinion. 

Having been both an executive branch lawyer and I have also 

been counsel to a Senate Committee, I understand the state of 

play. I do think the Administration, while perhaps not providing 

the very opinion that was provided to the President, needs to be 

as forthcoming as possible on these very issues about imminence. 

I agree with the point in the white paper that imminence cannot 

mean that a terrorist is about to push the button tomorrow, and 

that is the only time that you can target him. 

When we are dealing with terrorism, when we are dealing with 

nuclear weapons programs, there has to be a longer lead time. The 

Administration has tried to explain that, both in the white paper 

and in Attorney General Holder’s speech, but that is a very controversial concept that I think has been troubling both to Americans and for me, as a former State Department official, has been 

extremely troubling to our allies. 

Well, at what point is the U.S. saying that they are going to target someone if this concept of imminence is really redefined to be 

a very, very broad concept? So—— 

Mr. GOODLATTE. Well, let me take it a step further. It is not just 

killing, but it is also other actions taken by the Government. And 

the Congress has already required that the military get court approval before targeting an American citizen for surveillance. 

Mr. BELLINGER. Right. 

Mr. GOODLATTE. Which has less consequences than killing them, 

even in a foreign country. So why shouldn’t that requirement extend to a targeted killing? 

Mr. BELLINGER. Well, you know, this is, in fact, one of the great 

ironies at the broad conceptual level. Why is it that to conduct electronic surveillance of an American, the executive branch has to go 

to a court, but to actually kill an American, they don’t? 

The reason is about 30 years ago or so, Congress got concerned 

about electronic surveillance of Americans and said we want to set 

very specific parameters before the executive branch does that. 

Congress could do that in this case, and I think that is something 

this Committee ought to think about. 

Now, to a certain extent, I do believe, as you have heard from 

my colleagues, that this may be a solution in search of a problem. 

The United States is not out regularly killing Americans. That 

said—— 

Mr. GOODLATTE. No, but it is good for the Congress to check and 

make sure that they are not, too, right? 
71 

Mr. BELLINGER. That is right. And so, even if only one American 

has been killed, if Congress, on behalf of the American people, is 

concerned about the Government targeting people, I think Congress could reasonably pass a statute that says not to require judicial review—because I really think that is too difficult, particularly 

in a war, in an armed conflict—but to specify the circumstances 

that the executive branch has to satisfy before they target an 

American and then to require some notice in reporting back to Congress. That is the check and balance. 

Mr. GOODLATTE. Since my time is limited, let me go on to Mr. 

Chesney and Mr. Wittes. First of all, Mr. Chesney, does the white 

paper provide enough information about why the Administration 

believes it has authority to kill U.S. citizens abroad? 

Again, I am not talking about Anwar al-Awlaki. I think the evidence is pretty solid he is a bad guy, and he got the end he deserved. I would note for Mr. Wittes’ analogy to hostage taking, that 

you have collateral damage that you have got to pay attention to 

there. And in this case, his 16-year-old son, also a United States 

citizen and not a senior operational leader of al-Qaeda, was killed 

in the same attack. 

So I would like you to tell how we can refine making that distinction and protect the rights of law-abiding U.S. citizens. I am not 

saying his son is or is not. But I think that is a legitimate question 

when we know that he also faced the same demise. 

So, Mr. Chesney? 

Mr. CHESNEY. Mr. Chairman, as Mr. Bellinger said, it is quite 

possible that in some of the documents that the Committee has not 

yet been able to see and that certainly we haven’t seen, that there 

is a much more expansive explanation as to the foundations of affirmative authority to target that the Administration is claiming. 

That said, there is a fair amount of detail even in the white paper. 

The core claim, of course, is the 2001 Authorization for Use of Military Force is pertinent here. Al-Qaeda membership is woven into 

the conditions that are specified both in Attorney General Holder’s 

speech and in the white paper. 

The more interesting question, though, of course, is what about 

threats that are of similar magnitude, similar threats to American 

lives that don’t necessarily arise with an al-Qaeda nexus? As Mr. 

Bellinger pointed out in his opening remarks, a dozen years removed from the 2001 AUMF, the nature of the threat environment 

the United States faces has evolved considerably, and it is increasingly the case that it is not enough simply to say, well, the threat 

is al-Qaeda or to gesture in the direction of associated forces. At 

a certain point, we have to ask whether there’s a need for a clearer 

statement from Congress as to what range of situations the Administration ought to be in bringing to bear the armed conflict model. 

Now that said, the white paper is also careful to identify a distinct head of authority, and that is Article II authority, indeed, the 

duty of the President to defend the Nation when faced with threats 

to American lives. 

Mr. GOODLATTE. Right. Let me interrupt you because I do—my 

time has expired, and I do want to get Mr. Wittes with an opportunity to respond to the same question. 
72 

Mr. WITTES. So I just want to respond briefly to your point about 

the hostage situation. Number one, you know, collateral death is a 

distinct possibility in a hostage situation, and it is one of the background principles I think that makes the analogy so precise is the 

possibility that you may actually accidentally kill some of the hostages. 

Number two, I think the collateral deaths of U.S.—— 

Mr. GOODLATTE. Right. But that is also a case where the imminence of the danger to those hostages is very, very real. 

Mr. WITTES. Correct. I mean, you have the possibility of imminent danger to the hostages—— 

Mr. GOODLATTE. You don’t necessarily have that with somebody 

driving around Yemen in an automobile or however this particular 

drone attack was taking place. 

Mr. WITTES. Right. But you do have the possibility of imminent 

death to people on the airplanes that he is allegedly putting Umar 

Farouk Abdulmutallab on. 

Mr. GOODLATTE. Look, I am not defending Mr. al-Awlaki in any 

way, shape, or form. I want to know what we can do to protect U.S. 

citizens from having that occur. 

Mr. WITTES. Right. 

Mr. GOODLATTE. Mr. Vladeck? Go ahead. Go ahead. 

Mr. WITTES. Can I just respond to that? I mean, I think the answer to that has to be rigorous procedures. Now whether those rigorous procedures are—you want rigorous procedures both on the 

side of making sure the target is the person who you think he is 

and making sure that you, in fact, have identified rigorously the 

person who, in fact, is a lawful target. 

And you also want rigorous procedures that will in a fashion consistent with the laws of war minimize collateral damage—— 

Mr. GOODLATTE. Okay. I am going to interrupt because I want 

him to say a few words, and then I want to turn to my colleague. 

And I have exceeded my time. 

Mr. VLADECK. Mr. Chairman, very briefly, the only thing I would 

add to what has already been said by my colleagues is I think it 

is very important, especially for the purposes of this conversation, 

to keep in mind that we are dealing with different scenarios and 

different categories of cases. And so, the answer to your question 

I believe is going to change depending on whether the justification 

for the strike is classic self-defense, where there is, in fact, a clear 

imminent threat to U.S. persons or U.S. interests. 

Mr. GOODLATTE. Hostage situation. 

Mr. VLADECK. Hostage situation. Or a targeted killing operation 

that takes place not as part of self-defense, but as part of the 

broader non-international armed conflict between the United 

States and al-Qaeda in those parts of the world where there are 

active combat operations. 

And respectfully, sir, I do believe we are going to have very different answers to your questions based on which category we are 

talking about. 

Mr. GOODLATTE. Sure. The Chair now recognizes the Ranking 

Member of the Constitution Subcommittee and the gentleman from 

New York, Mr. Nadler, for 5 minutes. 

Mr. NADLER. I thank the Chairman. 
73 

My first question I must give credit to David Cole and the March 

4th issue of the Nation. I am just going to read the question he 

posed. 

Imagine that Russian President Vladimir Putin had used remote 

controlled drones armed with missiles to kill thousands of ‘‘enemies’’ throughout Asia and Eastern Europe. Imagine further that 

Putin refused to acknowledge any of the killings and simply asserted in general terms that he had the right to kill anyone he secretly determined was a leader of the Chechen rebels or associated 

forces, even if they posed no immediate threat of attack on Russia. 

How would the State Department treat such a practice in its annual reports on human rights compliance? Anyone? Maybe we can 

start with Mr. Bellinger? 

Mr. BELLINGER. Thank you, Mr. Nadler. 

In fact, as I alluded to in my opening remarks and at greater 

length went into my written remarks, I mean, this is a real problem. It could happen this year where the poor State Department 

spokesman is going to have to stand up after Russia or China has 

used a drone against a dissident in the next country, and the State 

Department will have to explain why that was a bad drone strike 

in comparison to the United States that, of course, only conducts 

good and lawful drone strikes. 

And so, that is extremely important for our Government, both 

Congress, but primarily the executive branch, to lay down as precisely clear rules for the use of drones—— 

Mr. NADLER. That is fine, but isn’t it the case that if Russia or 

China or someone were doing what Mr. Cole posits, that we would 

condemn that out of hand? That we wouldn’t say, well, you know, 

this drone strike was okay and that one wasn’t? That we would 

say—— 

Mr. BELLINGER. If Russia or China were being attacked by a terrorist group that was indisputably posing imminent—— 

Mr. NADLER. Well, the Chechens attacked them at one point. 

Mr. BELLINGER. And if Chechens were in another country posing 

imminent threats to Russia, and the country that they were in was 

unwilling or unable to prevent that threat, I think we would have 

to acknowledge Russia’s right to defend itself. 

Mr. NADLER. Okay. Let me continue. First of all, one comment 

on something Mr. Bellinger said. He said we need due process, but 

not judicial process. I don’t understand, and I am not asking a 

question, I am just saying. I don’t understand how a unilateral determination by an executive branch official without any judicial involvement can be considered due process in any form. 

Let me ask Mr. Wittes the following question. You said and the 

white paper says that we can attack a senior operational terrorist 

posing an imminent threat consistent with the laws of war. My 

question is the following. 

I don’t understand why we need a senior operational terrorist, 

why he can’t be just an ordinary terrorist. I don’t understand why 

he has to be posing an imminent threat. I think the analysis is 

completely different. 

Either this person is an enemy combatant, or he is not. If he is 

not an enemy combatant, he is subject to normal criminal law, and 
74 

we ought to have normal due process and take him to court and 

so forth. If he is an enemy combatant, he doesn’t need due process. 

The question is how do you determine whether he is an enemy 

combatant, and who determines whether he is an enemy combatant? Whether he is senior or not, I don’t care, frankly, from this 

point of view. But under the laws of war, if he is an enemy combatant, he is a legitimate target. 

But who can determine that under what standards, and what 

precedents do we have, and on what grounds, and how can the executive determine that without any kind of other determination? 

Let me ask Mr. Wittes and Mr. Vladeck. 

Mr. WITTES. Well, I would just say, as a matter of law, you have 

just taken a position that is far more permissive with respect to 

targeting than the Obama administration’s position. 

Mr. NADLER. No, because I have said it has got to be—you have 

got to determine properly he is an enemy combatant. 

Mr. WITTES. I understand. You have raised—you have suggested 

a narrower process to determine a broader category, right? The 

Obama administration has taken the view that it generally will not 

specifically or that it does not assert generally the right to target 

any U.S. national overseas who may fit in a law of war category 

of belligerency. It will target people only when they are an imminent threat and a senior operational leader whose capture is 

unfeasible. 

So you are taking a view that is potentially much more permissive and inclusive of more possible targets, but with a concern 

about the lack of process on the judicial side. I would just say— 

I mean, I think it is a very legitimate question what processes this 

body wants to impose for making those determinations. 

My only point is that there is nothing particularly extreme about 

the substantive position, there is nothing extreme at all about the 

substantive position the Administration has taken about whom it 

may target. And under current law, which is the law under which 

it confronted the Anwar al-Awlaki case, which is really the case 

that gave rise to these memos in the first place, there is no basis 

for judicial process at all. There is no forum in which to take these 

questions. 

Mr. VLADECK. Congressman, all I would say is I share your concerns about the view that due process is not a requirement of judicial process. I was surprised to hear the Attorney General say that 

last year in his speech at Northwestern. 

The only thing I think that it is worth bearing in mind is due 

process is not necessarily a requirement of pre-deprivation judicial 

process. 

Mr. NADLER. Of what? 

Mr. VLADECK. Of pre-deprivation, right? In other words, there 

are circumstances where the Supreme Court has said the Government is allowed to act, and then we will review after the fact 

whether they acted with sufficient procedural safeguards. 

And so, I share your view. I think the point is that that is not 

necessarily—the cash-out of your view is not that there should be 

pre-deprivation judicial process, but rather that there is a requirement that, at some point, some neutral magistrate is reviewing 
75 

whether the Government’s decision was made with adequate safeguards. 

Mr. NADLER. Could I just ask Mr. Vladeck to comment on the 

question that I posed? Under laws generally, if someone is not an 

enemy combatant, you cannot target him in any way without due 

process and a determination. If he is an enemy combatant, well, 

there are consequences that flow from that. 

How do we determine? I mean, if someone is wearing a uniform 

at Normandy in 1944, it is pretty safe to assume he is an enemy 

combatant, but—the wrong uniform, that is. But in the absence of 

that, how do we determine and under what safeguards should we 

determine who is an enemy combatant or not? 

Mr. VLADECK. So all I will say briefly, if I may, is that Article 

5 of the third Geneva Convention creates a requirement that when 

there is doubt about the status of a belligerent, there is supposed 

to be a hearing. It doesn’t have to be a judicial hearing. It could 

be an administrative hearing. 

But there is some requirement that at some point—it doesn’t 

have to be before you capture them. It does not have to be before 

you act. But that at some point, as soon as is reasonably possible, 

you are ensuring that, in fact, the procedural safeguards that you 

have implemented have produced the right person. And that is 

what led to the Supreme Court’s Hamdi decision in 2004, saying 

that, indeed, we need more due process, especially where U.S. citizens are concerned. 

Mr. GOODLATTE. The gentleman’s time has expired. 

Mr. NADLER. Thank you. 

Mr. GOODLATTE. I thank the gentleman from New York and the 

witnesses. 

I recognize myself for 5 minutes, and I would make the point 

this. As I listened to the testimony here and we have gone into this 

decision-making process, I go back and reflect on the Constitution 

and the commander-in-chief. And even though there is a little political tension over this issue, I don’t want to disempower our commander-in-chief from protecting our Americans, wherever we might 

be. And neither do I want to delay his decision to act. 

And so, we are confronted with this question if we are going to 

review the decision, either we give carte blanche authority to the 

President of the United States as commander-in-chief to kill an 

American citizen abroad under the definitions that come out of the 

executive branch, or we define those conditions here by this Congress. And then we ask for a review. Prospective concerns me too 

much because that delays the response. Retrospective then goes either to Congress, or it goes to the judicial branch of Government. 

So which—that is the question that is before us, the definitions. 

And I will say for me, it has got to be a retrospective, not prospective, and I would prefer that we review it here in Congress by some 

form rather than handing over warfighting to the judicial branch. 

That has always concerned me. 

On the other hand, the politicization of it here in this Congress, 

that is the balance. So there is the question that is before me, and 

I would just ask each of the witnesses to just go down the line and 

weigh judicial or congressional review. The definitions I don’t think 
76 

we want to try to address today precisely. But what would be your 

preference, Mr. Vladeck? 

Mr. VLADECK. Both. I mean, I don’t know why you couldn’t have 

both processes operating side by side, where individual victims of 

strikes that they believe are unlawful have recourse to the courts 

and where this body has its normal oversight function. I don’t 

know why they need to be mutually exclusive at all. 

I think they serve different purposes, and I think they vindicate 

different interests. So I am not sure why it has to be either/or. 

Mr. GOODLATTE. And then with regard to security? 

Mr. VLADECK. Well, you know, I think the Guantanamo habeas 

cases are a very good example for all of us. These are cases where 

the Government’s arguments all along were concerns about classified information being disclosed to the public, to the media, et 

cetera. And even though there have been some five or six dozen habeas cases since the Supreme Court’s 2008 Boumediene decision, I 

am unfamiliar with any single instance where any item of classified information was disclosed through those proceedings inappropriately. 

Mr. GOODLATTE. I would agree with that, Mr. Vladeck. 

Mr. Wittes? 

Mr. WITTES. So I am sort of instinctively opposed to prospective 

judicial review of these questions. I do think the Congress, in the 

form of the Intelligence Committee and Senator Feinstein, has 

issued a fairly substantial statement about what the Senate Intelligence Committee at least has done in the way of reviewing these 

strikes, which seems fairly substantial. So I do think some of that 

is already going on. 

In addition, I have to say I find Professor Vladeck’s written statement on the attractiveness of post hoc review judicially to be a very 

intriguing document. And I think that has a lot to recommend it, 

and I commend it to the Committee. 

And I also think that Professor Chesney, who has in his written 

statement attempted to narrow the categories of prospective review, which, as I say, I sort of viscerally oppose, but narrow it 

down to its finest levels where it would be least intrusive is a 

model that has a lot to recommend it as well. 

So I mean, I think there is—I largely agree with Professor 

Vladeck that there is opportunities in both spheres. 

Mr. GOODLATTE. But would it be your opinion that prospective 

review would delay an operation perhaps? 

Mr. WITTES. I fear very much that it could. I also fear that the 

temptation on the part of the executive branch would be to throw 

lots of things to whatever judicial tribunal that was created in 

order to get cover for things, and you would end up with a very 

substantial and unanticipated dialogue between whatever tribunal 

you created and the executive in much, actually, the way that FISA 

has done in many ways attractively in that context. I think in the 

targeting context, it would be less attractive. 

Mr. GOODLATTE. Mr. Chesney? 

Mr. CHESNEY. I certainly agree that congressional oversight 

should be granular and serious. There should be as much transparency as possible there. I think that is critical, and I think that 

is common ground for almost everybody here. 
77 

I think the hard question is the role, if any, for the judiciary. As 

Mr. Wittes just said, I endeavor in my remarks to show that I do 

come down in the remarks in favor of prospective, rather than post 

hoc. But I do so only with respect to a very narrow set of issues, 

issues that I don’t think should be reviewed by the judiciary post 

hoc or after the fact include the issues that are most time sensitive. 

Decisions whether the particular person who is in your sights for 

this fleeting moment is, in fact, who you think it is, whether capture is feasible. Those sorts of features I don’t think are fit subjects 

for judicial review. 

What I do think could be properly reviewed by the judiciary, and 

I think in advance in order to give the executive branch certainty 

is better, would include mainly the alleged membership of the individual in the organization in question and their role within the organization. And I say this only on the assumption that we are in 

a situation where it is not exigent to determine that right now. 

There has to be an exigent opt-out. 

Mr. GOODLATTE. Thank you. 

And Mr. Bellinger? 

Mr. BELLINGER. I think I come out where you seemed to be coming out in the beginning of your comments. I mean, first, I think 

you really have to decide is this a problem that is coming up so frequently that Congress needs to intervene? We have only had one 

example. 

That said, it is a very serious example. So if we get over that 

hurdle, I think Congress could quite reasonably legislate, one, the 

criteria of who should be targeted. And much of it is in the white 

paper, but you might put in even more specific criteria. And then 

the procedures that would be required for targeting inside the executive branch. 

I would not require either prospective or a retrospective judicial 

review. I think the check and balance in our constitutional system 

is for reporting to Congress, if possible beforehand in a classified 

setting. 

There appeared to have been a very long lead time with the targeting of Mr. al-Awlaki. The executive branch could have gone and 

told the Intelligence Committees we are targeting this person. If 

Congress says, ‘‘We completely disagree. We think this guy is just 

exercising his First Amendment right,’’ the executive should take 

that into account. 

Certainly after the fact, if the executive branch has targeted 

Americans, I see no reason why the executive can’t come and report 

that to Congress. And again, if Congress after the fact says, ‘‘This 

is not the authority that we gave to you, we have got real concerns 

about it,’’ that, to me, is the check and balance. 

Last point. Remember, as you said, we are talking about an 

armed conflict situation. And so, tying the President’s hands one 

way or another before or after with judicial review in an armed 

conflict decision as commander-in-chief I think is a very serious 

problem. I would not do that. 

Mr. GOODLATTE. Thank you, Mr. Bellinger. And your point, prospective, if possible, and retrospective, if necessary, I see as an alternative. 

I thank the witnesses, and I see that my time has expired. 
78 

And I would yield to the true gentlemen from Virginia, Mr. Scott. 

Mr. SCOTT. Thank you, Mr. Chairman. 

Mr. Vladeck, the determination has to be made that the target 

is a senior operational leader of al-Qaeda, imminent threat, capture 

not feasible, consistent with the laws of war, but did I miss it in 

the white paper where they talk about the standard that is used, 

whether it is beyond a reasonable doubt or moral certainty or preponderance of the evidence? 

Or there is a standard not clearly erroneous. Where is the standard? 

Mr. VLADECK. If you missed it, Congressman, I missed it as well. 

I mean, I don’t think the white paper goes out of its way to say 

what the particular burden is, partially I think because the white 

paper disfavors judicial review, which is where that burden would 

presumably come into play. 

Mr. SCOTT. What evidence can be—are there any rules of evidence as to what evidence can be considered? 

Mr. VLADECK. There are no—certainly, there are no legislatively 

imposed rules of evidence that apply to these cases. 

Mr. SCOTT. Can hearsay be considered to ascertain whether or 

not these factors are true? 

Mr. VLADECK. All I will say is there may well be internal and 

classified executive branch rules that deal with this. Certainly, we 

don’t know about any of them. 

Mr. SCOTT. Well, we are talking about the rules that we are 

going to by. The internal stuff can change every day. Is there any 

prohibition against hearsay being considered? 

Mr. VLADECK. No. 

Mr. SCOTT. Why is hearsay not considered admissible in a court 

of law? 

Mr. VLADECK. I mean, I think the short answer is it is generally 

believed to be inherently unreliable. 

Mr. SCOTT. And that can be considered to put someone to death, 

best you can determine from the white paper? 

Mr. VLADECK. Certainly, there is nothing in the white paper that 

suggested it couldn’t be. 

Mr. SCOTT. Now judicial review, we have had situations where 

you get the hostage situation, imminent, ongoing situation. Is there 

any problem with a prospective judicial review, if feasible, as there 

is in FISA and post hoc, if it’s not feasible beforehand? 

Mr. VLADECK. So I think, Congressman, there are two problems, 

one legal, one practical. Because I do think—I mean, I do think you 

could solve the concerns that Congressman King raised through an 

emergency exception. 

But I think the legal concern is there is an Article III question 

about whether there is adversity in the judicial proceeding. The 

reason why this isn’t usually an issue with regard FISA warrants, 

like search warrants in criminal cases, as I elaborated in my written testimony, is because those are seen as ancillary to the subsequent criminal proceedings. 

In this context, without any subsequent proceeding, I think you 

would have a very serious problem if the Government had this ex 

parte application to a judge with no one representing the other side 

either at that point or afterwards. 
79 

Practically, Congressman, my concern is, you know, ex ante judicial review could very well turn into death warrants where basically judges feel enormous pressure in these circumstances to sort 

of defer to the Government, especially without adverse counsel, adverse parties, adverse presentation. Whereas, in the context of retrospective review, judges have the hindsight. Judges can actually 

see what happened. 

So I think there is both legal and practical problems that would 

arise with ex ante review, separate from the emergency situation, 

which I think you could provide for by statute. 

Mr. SCOTT. Well, how long are people on the list? 

Mr. VLADECK. We don’t know. I mean, certainly, as I think the 

last exchange suggested, it appears to be the case that Mr. alAwlaki was targeted and on the list where he could have been targeted for some extended period of time. 

Mr. SCOTT. So if you are on the list for some extended period of 

time, at some point during that time, someone could have wandered over to an independent review? 

Mr. VLADECK. Well, as you know, Congressman, Mr. al-Awlaki’s 

family did. I mean, there was a lawsuit brought on behalf of Mr. 

al-Awlaki in the D.C. Federal District Court before the operation 

that ended up terminating his life. That suit was dismissed by I 

believe it was Judge Bates on a series of procedural grounds that 

it wasn’t justiciable, that the political question doctrine got in the 

way, et cetera. 

So there was, indeed, an attempt to do exactly that. 

Mr. SCOTT. Well, what recourse is there for someone who is on 

the list by mistake? 

Mr. VLADECK. At least in al-Awlaki’s case, the Government—I 

don’t know how seriously to take this, but the Government certainly suggested that if he wanted to turn himself in, they would 

be obliging. So at least when it is public that the Government believes it has the authority to kill a particular person, presumably 

they could seek to turn themselves in and then contest it. But 

there is no procedure for that. 

Mr. SCOTT. Is drone killing the only method for killing? 

Mr. VLADECK. No. I mean, I think it is important to keep in mind 

that this conversation is not actually about drones as such. That 

it is about uses of any number of sources of military hardware to 

conduct targeted killings, whether through an unmanned aerial vehicle, a manned bomber, a Tomahawk missile fired from a Navy 

ship in the middle of, you know, a body—— 

Mr. SCOTT. Handgun? 

Mr. VLADECK. Sure. So, no, it is not about drones, per se, although I think the technological utility of drones makes it easier 

and cheaper for the Government to conduct these operations than 

conventional pre-existing technologies might. 

Mr. SCOTT. Is there any rationale for allowing—is there any rationale for killing them overseas? What if they are found in the 

United States, what happens? 

Mr. VLADECK. Well, at least according to the white paper, one of 

the critical considerations is the feasibility, or lack thereof, of capture. I have to think that the Federal Government will never take 
80 

the position that it is infeasible to capture an individual who is 

within the territorial United States. 

But I still think they could probably—if I back up a second, I 

think the Government could claim the authority in exceptional circumstances to use lethal force against a U.S. citizen in the U.S. 

Law enforcement officers do it all the time. So I think with regard 

to the white paper, that circumstance won’t arise because you will 

never satisfy the infeasibility of capture prong. But that doesn’t 

mean that the Government wouldn’t claim such force in another 

context. 

Mr. GOODLATTE. The gentleman’s time has expired. 

And the Chair will now recognize the gentleman from Arizona, 

Mr. Franks. 

Mr. FRANKS. Well, thank you, Mr. Chairman. 

Thank you, gentlemen, for being here. 

I was struck by the Chairman of the Committee’s juxtaposition 

between surveillance and the drone strikes, and I will have to go 

ahead and begin my comments by suggesting that as we look back 

not such a long time ago when the Administration eviscerated the 

Bush administration for waterboarding certain individuals under 

circumstances that perhaps were at least as compelling as some of 

those we are discussing today. And yet the drone strikes are something that they can move forward to. 

And it just seems to me that there is more than a subtle difference between waterboarding and blowing someone into eternity. 

And the hypocrisy of the Administration is profound, in my opinion, on this front. 

With that said, as I have come to expect and anticipate a certain 

cognitive dissonance and a certain unwillingness for this Administration to hold themselves constrained to the truth, their previous 

statements, their previous positions. So my thought today is for 

those of us that are committed to protecting the Constitution and 

protecting the constitutional way of life for Americans, that we 

have to then focus very narrowly on this phrase ‘‘due process,’’ and 

that that has to be our definitional task. 

Certainly, there are none of us, I believe, on this Committee that 

would say that we just need to do away with due process when we 

are talking about an American citizen. However, as the other gentleman mentioned earlier, with police officers and things of that 

nature, we have due process in this country. But if there is an imminent threat, and sometimes the degree of the imminence is 

taken into consideration, then the due process exists because of 

that conditionality. 

So what I would like to do, if I could start with you, Mr. 

Bellinger, just simply see if we can find some consensus among the 

panel as to what critical elements should be in any congressional 

outline of due process here and whether there should be some significant punitive measures built into that kind of guideline to keep 

an Administration within the track of what befits our constitutional premise. 

So, Mr. Bellinger? 

Mr. BELLINGER. Well, thank you, sir. 

And I can’t resist, as someone who spent all 8 years in the Bush 

administration sometimes receiving the criticisms and slings and 
81 

arrows from people on the outside, to address your point about hypocrisy. 

I have been supportive of the Obama administration’s 

counterterrorism policies, including of the drone strikes. I would 

like to have seen some of them, now that they are in office, acknowledge that maybe some of these issues that they claimed we 

were making huge mistakes on before are actually more difficult 

than they acknowledge. And we see little of that acknowledgment. 

Frankly, one of the reasons I am here today, as a Republican official, is to give the same kind of bipartisan support to this Administration that I would have liked to have seen some of them when 

we were in office giving to us on these difficult counterterrorism 

issues. 

That said, with respect to due process, the question of due process, I think, does not mean judicial process. It can mean judicial 

process in some circumstances. But the Constitution never said judicial process. It says you can’t be deprived of life or liberty without 

due process. 

So what is the process that is due in a particular situation? In 

a situation where we have an armed conflict, i.e., a war, the process I think this Congress can appropriately say is to say that an 

American can only be killed who fits certain criteria. That it has 

to be a senior al-Qaeda leader who is planning attacks and that 

those are imminent attacks, and the executive branch has to have 

reviewed this and reached high confidence that the person reaches 

those criteria and, where possible, has notified Congress in advance, if that is possible, and certainly afterwards to have notified 

Congress after the fact. 

So I think I would guess that at minimum, the panelists here 

would say we could at minimum agree on those criteria if Congress 

were going to legislate. And then the only add-on is, is there some 

judicial role or not? 

Mr. FRANKS. Well, thank you, sir, and I appreciate your answers 

across the board. 

Mr. Vladeck, could I ask you to take a shot at it? 

Mr. VLADECK. Sure. I mean, I think—so I think we have to be 

careful, and perhaps I wasn’t sufficiently clear in my responses to 

Congressman Nadler, that it is not that due process is by itself a 

requirement of judicial process. It is that the way to ensure that 

the Government has provided the process that is due is not simply 

to take the Government’s word for it, but is to provide some modicum of review, independent external review that whatever process 

was due under those circumstances was, in fact, provided and it 

was not just asserted that it was provided. 

So, to that end, Congressman, I think this court can look to the 

jurisprudence that the Supreme Court has articulated in these 

cases—the Hamdi case, for example—with regard to what kind of 

due process is due an American citizen, even one who takes up 

arms against the United States, in Hamdi’s case as part of the 

Taliban. 

I think there is a lot that we could learn from that example with 

regard to the balance that we should strike in those circumstances, 

and I think that if this Committee is serious about codifying those 

standards, there is plenty of precedent to base that on. 
82 

Mr. FRANKS. And would you suggest that there might be any punitive elements in those guidelines for a Government that fails to 

follow them? Not just in case—a prosecutor, sometimes his case collapses if he doesn’t do Miranda rights, but shouldn’t there be something more punitive than that in a case that has such profound 

constitutional foundations? 

Mr. VLADECK. Well, Congressman, in my testimony, I suggest 

that you can provide a damages regime. Certainly, there would 

come a point where a Government officer might even be breaking 

various criminal laws if they are acting with gross negligence and 

intending to cause harm or they don’t have the authority to use 

such force. 

My view is that it would be a sufficiently significant step in this 

context to even provide and create civil remedies. That, by itself, 

would, I think, have an incredibly salutary effect on the Government’s practice. 

Going further than that I think would run into the question of 

who would prosecute that case? Would the Government really be 

interested in prosecuting its own officers and its own solders for 

crossing the line in that case? 

Mr. FRANKS. I mean, we do that all the time. 

Mr. VLADECK. Well, certainly, it is true in the military context. 

So the Uniform Code of Military Justice does provide for court 

martialing of our service members when they cross those lines. I 

think civil remedies might be sufficient for senior Government officers. 

Mr. FRANKS. Thank you. 

Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman for his good line of questioning. 

And the Chair now recognizes the gentleman from Puerto Rico, 

Mr. Pierluisi, for 5 minutes. 

Mr. PIERLUISI. Thank you, Chairman. 

I thank the witnesses. I have a couple of questions based on your 

prior testimony and written submissions. 

I have noticed that some of you, if not all, have asserted that the 

Obama administration is actually taking a very limited targeting 

authority with respect to American citizens. My first question for 

each of you then is do you believe that the Obama administration, 

consistent with Article II of the Constitution, could have asserted 

a broader or far broader targeting authority? 

If the answer is yes, in what respects? Basically, I am interested 

in understanding whether you believe the Administration has gone 

to the outer limits of its Article II powers, and if not, in what specific ways it has not. 

Mr. BELLINGER. Do you want—— 

Mr. PIERLUISI. Yes, each of you to comment on this. 

Mr. BELLINGER. I think it is an excellent question. I think the 

Administration probably has not gone to the outer bounds of what 

its constitutional powers would be. Of course, none of us know really what those bounds are. There is just not a clear answer to this 

question. 

The Administration, I think, has taken a very restrictive standard. The exchange with Mr. Nadler actually gave a particular ex-
83 

ample. Instead of saying that the only Americans that could be targeted would be those who are senior operational al-Qaeda leaders 

who pose an imminent threat, the Administration could, I think, 

have said under the Constitution that any American who has taken 

up arms against the United States as part of an armed conflict 

could be targeted. 

If this were a traditional war, in World War II, and there were 

a German American, we would never have said that the only German American who had taken up arms would be a person who was 

a senior leader who posed an imminent threat at the time. So I 

think certainly the President would have broader authority, and to 

the Administration’s credit, they understand that this is a serious 

power they are asserting to kill an American, and they have taken 

in this case a fairly limited reading. 

Mr. CHESNEY. Sir, I agree with that as well. I would add that 

it is noticeable that the Administration’s formulation in the white 

paper and in the Attorney General’s speech is al-Qaeda specific. It 

doesn’t have to be if we are talking about the duties and authorities of the President to defend the Nation in a true case of imminent threat. If that threat came from some other extremist group 

or individual that happened not to have a nexus with al-Qaeda, 

that power would still be there. 

Mr. WITTES. I would just add to that. You framed your question 

in terms of Article II, but the Administration could actually take 

a much more robust position under the AUMF itself. And the position would be suggested by the line of questioning that Congressman Nadler asked before. 

The D.C. Circuit has said in the habeas context that it is enough 

to justify targeting—to justify detention to be part of or substantially supporting enemy forces. Now just focus on the ‘‘part of’’ component of that. You know, to follow your line of questioning, the 

Administration could take the view that an American who is part 

of enemy forces is is lawfully targetable under the laws of war and 

under the AUMF. It does not take that position. 

It hasn’t forsworn that position, to be clear. It said, what it has 

said is it has addressed a single very specific case, which is the 

case of Anwar al-Awlaki, who it found to be a senior al-Qaeda operational leader whose capture was not plausible, who posed an imminent threat and whose targeting would be lawful under the laws 

of war. And it asked a comprehensive question, which is, is it is 

lawful to target this guy? 

And they limited their answer to that question, I think rightly 

and admirably, by the way. They limited their answer to that question so as not to take on bigger questions and more difficult questions than they needed to in that moment. They limited their answer to that question to those three, which are really four, circumstances. 

That leaves a lot of ancillary questions, like what about the nonoperational senior leader who poses an imminent threat? What 

about the operational senior leader who doesn’t pose an imminent 

threat? What about the U.S. citizen foot soldier? All of those questions are left open by that, and there is no claim of authority to 

target such people. 

Mr. NADLER. Would the gentleman yield? 
84 

Mr. PIERLUISI. Yes. 

Mr. GOODLATTE. Without objection, the gentleman is recognized 

for an additional minute so he can yield to the gentleman from 

New York. 

Mr. NADLER. I thank the gentleman. I thank the Chairman. 

I just want to clarify, since my comments have been quoted a 

number of times, that I was not suggesting that we ought to or 

that the Administration ought to broaden its targeting criteria. I 

was simply suggesting that none of this makes any sense until you 

have determined that someone is an enemy combatant. That seems 

to me that that is the first question that must be determined with 

some sort of due process or neutral process. 

Mr. WITTES. Look, if I may, there are two baskets of questions 

here. One is the substantive criteria for targeting, and one is the 

procedural dimensions of how you determine whether somebody is 

in that substantive criteria or outside it. When you and I had the 

exchange earlier, you described a very broad criteria for targeting 

and suggested that your anxiety about U.S. targeting practices vis- 

?-vis citizens was on the procedural side whether people were or 

were not in that narrow basket—in that basket. 

My argument is that what the Administration has done is actually exactly the opposite of that, which is it has defined a very narrow substantive basket, and it has no known procedural or at least 

no public procedural—— 

Mr. NADLER. My point was that however narrow or broad the 

basket, and I am not suggesting broadening it, you have to answer 

that question first—Are you an enemy combatant?—and have the 

procedural due process. 

Mr. GOODLATTE. The time of the gentleman has—— 

Mr. WITTES. I think all of the members of the panel would agree 

with you about that. 

Mr. NADLER. I thank the Chairman. 

Mr. PIERLUISI. Mr. Chairman? 

Mr. GOODLATTE. I thank the gentleman for that clarification. 

The gentleman from Puerto Rico? 

Mr. PIERLUISI. May I have just 30 seconds just to confirm one 

fact? 

Mr. GOODLATTE. Without objection, the gentleman is recognized 

for 30 seconds. 

Mr. PIERLUISI. Thank you so much. 

This is based on Mr. Chesney’s comment before. So the Obama 

administration’s formulation requires that there be a link with alQaeda before you can do any targeting here. Is that correct? The 

way it is formulated right now, this policy requires a link to alQaeda. Is that right? 

Mr. CHESNEY. The policy is formulated in a way that is careful 

to say that it is making an affirmative claim of authority to attack 

where there is that senior al-Qaeda link. But I don’t think it is 

written in a way that suggests that they are denying they have authority otherwise. 

But they do build al-Qaeda or associated forces of al-Qaeda, and 

of course, the ‘‘associated forces’’ phrase raises the question how 

broad is that? 

Mr. GOODLATTE. The time of the gentleman has expired. 
85 

And the Chair now recognizes the gentleman from Texas, Mr. 

Poe, for 5 minutes. 

Mr. POE. Thank you, Mr. Chairman. 

Thank you, gentlemen. 

I would like to get back to some basics, and I know this may 

trouble Mr. Nadler, but I probably agree with him on much. Don’t 

make you nervous, Mr. Nadler. 

But in the big scheme of things, when this all came to light, myself and Mr. Gowdy from South Carolina wrote a letter to Eric 

Holder back in December asking for specific constitutional authority and tracking it to the activities of drone strikes against Americans overseas. We didn’t get an answer. We have sent a letter subsequent to that when we got more information on February 8th. 

We still haven’t received an answer from Eric Holder. 

And then, as the Chairman has pointed out, there is no one from 

Justice here. With their battery of lawyers, we hadn’t got one that 

will stand here or sit here and tell us the constitutional authority 

for killing Americans overseas that fit this criteria. 

I would like unanimous consent to introduce both of these letters 

into the record, Mr. Chairman. 

Mr. GOODLATTE. Without objection, they will be made a part of 

the record. 

[The information referred to follows:] 
86 
87 
88 

Mr. POE. My background is a judge. I believe in judicial review. 

I get troubled by prosecutors who want to do judicial things and 

then not tell us how they come to certain conclusions. I don’t buy 

the argument there is not enough time to get some judicial review. 

Twenty-two years of experience, judges working with law enforcement can move pretty fast under all of the serious examples that 

you have talked about. 

So I don’t buy that we have to let prosecutors do judicial review. 

They work for the executive branch. That is just my constitutional 

perception on that whole issue. 
89 

So I think the points are, as you have said, who fits this criteria, 

and who makes the determination that that person fits the criteria? Senior-level executive branch person yet to be named, like a 

draft choice, that troubles me. Who is that person? We don’t know. 

It is just a senior-level executive person. I don’t think that is the 

authority of the executive branch. 

And then who makes that determination and then that person is 

allowed to be on the kill list. Mr. Chesney, University of Texas, 

congratulations, by the way. Two daughters there. 

Mr. CHESNEY. Hook ’em. 

Mr. POE. Hook ’em. But let me ask you this, and you made the 

comment during your testimony that if there is a judicial review, 

it is a good idea maybe to review it when the person is put on the 

kill list. 

I am troubled with the concept that they are put on the kill list, 

they are killed, and then we are supposed to have a review after 

that to see if it was lawful? I mean, that doesn’t do the dead guy 

much when we find out, oh, we made a mistake here, you know? 

And don’t get me wrong. I don’t like these people. I think they 

need to be—long arm of the law ought to deal with them about 

crimes against America. But I would ask for you to weigh in on 

this to help us improve this system that we are operating under 

because, as you pointed out, you have got to get judicial review to 

listen to a phone conversation with an American overseas, but you 

don’t need judicial review to kill them overseas. 

So do you think we need some kind of judicial review at the outset of putting this person on the kill list? 

Mr. CHESNEY. Sir, I think it is a good idea, and I think it can 

be done, if done very carefully. And I think the key to doing it carefully so that it simultaneously addresses both the interests of the 

citizen and the imperative of protecting the country that rests on 

the President shoulders is to disaggregate the questions you might 

ask. We don’t want judges interfering in extremely time-sensitive 

questions about should we pull the trigger right now in this instance? There is only this much time to do it. 

But that is not actually the fact pattern presented by these specifically identified kill list scenarios. As we know, as the al-Awlaki 

case illustrates, there is a considerable period of time and there is 

a distinction between deciding is the person in the attackable category in general and whether or not some particular attack should 

be carried out. And there is a role for the judiciary if Congress 

wants to establish it, and I think they probably should, as to early 

stage determination, which isn’t a time-sensitive determination in 

the same way. 

Mr. POE. You know, we have been talking about one individual. 

What if the individual is not in one of the countries that we all suspect where al-Qaeda is? Because now they are everywhere. What 

if the individual is in one of our allies’ country? What if they are 

in France? What if they are in Mexico? What if they are in Canada? Is the discretion with the White House, whoever it is, to get 

that person on the kill list, and all of a sudden, they end up in 

France, and we can go after them? 

Mr. CHESNEY. Sir, I think there is a different set of rules that 

come into play in that scenario. 
90 

Mr. POE. All right. 

Mr. CHESNEY. Now it connects up with the Administration’s rationale that they emphasize capture must not be feasible. If you 

have someone in France, the United States, Mexico, England, any 

of these places, capture is almost certainly going to be feasible. And 

that alone may address it. 

Mr. POE. I know my time is limited. In fact, I am out. But I 

would just like to ask, though, is that discretionary with the executive branch? Is that policy, or is that written law? 

Mr. CHESNEY. I don’t think—well, the whole problem here with 

the uncertainty is we don’t have clear written law, right? It is uncertain. That said, I do think that the feasibility test may well be 

implicated by the Fifth Amendment and the Fourth Amendment. 

Mr. POE. All right. Thank you. 

Mr. WITTES. May I just add something to that? 

Mr. POE. That is up to the Chairman. 

Mr. GOODLATTE. Very briefly, Mr. Wittes. 

Mr. WITTES. So, I mean, I do think when you are talking about 

potential lethal force operations in allied countries or countries 

other than Pakistan, Yemen, Somalia, Mali, you are talking about 

a situation where the other legal constraints on U.S. action, particularly sovereignty come into play. 

And one of the things that causes those environments that we 

operate in to be relatively permissive is either the consent of the 

governments in question to do those operations, which presumably 

Canada and France are not going to give, or a finding—and this 

connects up with the point that Professor Chesney was making 

about the feasibility of capture—a finding that they are either unable or unwilling to manage the threat that the individual poses, 

which their law enforcement capacity would make very difficult to 

make. 

Mr. POE. Thank you, Mr. Chairman. 

Mr. GOODLATTE. Let me, if the gentleman will yield? 

Mr. POE. Certainly. 

Mr. GOODLATTE. I would yield an additional 30 seconds to make 

the point that we don’t want to put ourselves in the position with 

this analogy drawn by Mr. Wittes that we are going to rely on the 

foreign government to protect the rights of the United States citizen, as opposed to our own government protecting those rights. 

Mr. POE. Thank you, Mr. Chairman. 

Mr. GOODLATTE. And I would now be pleased to yield to the gentlewoman from California, Ms. Lofgren, for 5 minutes. 

Ms. LOFGREN. Thank you, Mr. Chairman. 

I have just a few quick questions. I am, I will just be frank, troubled that the memorandums that allegedly provide the legal basis 

for this have not been shared. And I am just sort of wondering, and 

maybe you can’t, any of you, answer it. But if you can, I would be 

interested. What conceivable reason there would be for the Obama 

administration to not share these memos and what the consequences are for not sharing these memos? 

Anybody who can answer that, I would like to hear. 

Mr. BELLINGER. Actually, it may surprise you, as a Republican 

official, but I will actually take a stab at defending the Administration on this, having spent 4 years as a White House lawyer. 
91 

This is the private legal advice that was given to the President 

of the United States. And just the way this Committee is allowed 

to rely on Mr. Ramer’s advice and the President could not say we 

want to see the advice that Mr. Ramer is giving to you, to see what 

advice you are getting—— 

Mr. GOODLATTE. Would the gentlewoman yield on that on point? 

Because they have shared that advice with other Members of Congress. 

Ms. LOFGREN. Yes. 

Mr. GOODLATTE. And this is the Committee that has oversight 

responsibility. 

Mr. BELLINGER. And let me just finish the point. What we are 

talking about is not sharing a particular document. The Administration, to the extent they have not made clear what their legal 

analysis is, absolutely they owe you a full explanation of their 

legal—— 

Ms. LOFGREN. Well, if I may, I mean, what you can and what you 

should do are sometimes different. 

Mr. BELLINGER. Right. 

Ms. LOFGREN. And it strikes me in this case that this is one of 

those cases, where if you take a look at the Authorization for Use 

of Military Force, which all of us voted for, for those of us who were 

here—there was only one no vote in the House—it says the President is authorized to use all necessary and appropriate force 

against those nations, organizations, or persons he determines 

planned, authorized, committed, or aided the terrorist attacks. 

Now are we to believe that everybody on this list was responsible 

for the 9/11 attack? I mean, is that the rationale? 

Mr. BELLINGER. No. You are exactly right. I think you have all 

four of us agree with you that the 2001 AUMF, which is only about 

60 words long—I was involved in drafting it literally almost on the 

back of an envelope while the World Trade Center was still smoldering—is now very long in the tooth. 

The good government solution, while extremely difficult and controversial, would be for Congress to work together with the executive branch to revise that AUMF. It is completely unclear about 

what it covers, who it covers, where it covers it. 

Ms. LOFGREN. Well, if I may, I think it is not as unclear as you 

suggest. I mean, this was a limitation, and there were big arguments about it. As you are, I am sure, aware, there was a prior 

draft that was much more expansive, and it was narrowed so that 

we could get bipartisan consensus, and it was narrowed for an important reason. 

And I guess I—yes, the executive has the ability to keep his legal 

advice confidential. That is a longstanding principle. But since it 

looks like at least questions are raised as to whether the executive 

is complying with the law, that if he feels he is, I think it would 

be a very positive thing for the Administration to share that legal 

theory with this Committee and with the American people, who I 

think have doubts that are substantial. 

And if it can be cleared up, that would be a good government response, it seems to me. And if it can’t be cleared up, then we have 

another serious type of problem that we have to deal with. 
92 

Mr. BELLINGER. I will agree with you about 99 percent of the 

way. To the extent that the Administration’s legal theory remains 

unclear to Congress, anybody in Congress, I think Administration 

officials should be up here to explain it, either publicly or privately, 

to put down in writing what they can. I think the questions that 

you raise are absolutely fair. 

Is it really clear that 4,000 people who are dead, that every single one of those fell within the AUMF, or did the President in some 

cases rely on his constitutional powers? These are really legitimate 

questions. The only thing I would say is that the President of the 

United States is allowed to receive a particular memo on a particular day and rely on that particular counsel. 

Ms. LOFGREN. Well, I will just say—and I was not a huge fan of 

the Bush administration, as I think many of my colleagues know. 

But we actually did get access, this Committee did get access to 

their memorandum laying out their rationale. I thought it was 

poorly written and misadvised, but at least we were provided with 

the analysis that they were attempting to rely on. And I would expect no less from the current President. 

I yield back. 

Mr. GOODLATTE. I thank the gentlewoman. 

And the Chair recognizes the gentleman from South Carolina, 

Mr. Gowdy, for 5 minutes. 

Mr. GOWDY. Thank you, Mr. Chairman. 

In a brief, but inspiring piece of bipartisanship, I want to express, along with my colleagues, my frustration, Mr. Chairman, at 

the DOJ’s absence today. Some of my colleagues know I worked 

there. I have plenty of friends that remain. I respect their work. 

I understand not responding to a letter from some guy from 

South Carolina. I don’t really understand not responding to Judge 

Poe’s letter. I really don’t understand not respecting this Committee enough to send someone. 

Because if they were here, and don’t misunderstand me. I appreciate your presence. I am grateful that you came. But my questions 

were going to be directed to them for this reason. I don’t need a 

DOJ memo to tell me that you can use lethal force to repel an imminent threat. I didn’t need them to tell me that. 

Police officers shoot folks all the time. Private citizens shoot folks 

who are invading their homes all the time. In fact, noncitizens can 

shoot a United States citizen without having to go to a judge beforehand. Now there is review afterward, both criminal and civil. 

But I didn’t need the Department of Justice, Mr. Chairman, to tell 

me that. 

I also did not need the Department of Justice in a memo to explain to me that in times of war you don’t need a judge picking 

your targets for you. In a time of war, you can’t have a judge 

weighing and balancing whether or not there is too much collateral 

damage in this building or this village. 

What I really want to ask the Department of Justice, Mr. Chairman, is this. There are two references in this memo were the target 

of a lethal operation a U.S. citizen who may, who may have rights 

under the due process clause in the Fourth Amendment. That is on 

page 2, Mr. Chairman. And then on page 5, the department assumes that the rights afforded by the Fifth Amendment’s due proc-
93 

ess clause, as well as the Fourth Amendment, attach to a U.S. citizen even while he is abroad. 

So if the Fifth Amendment attaches and the Fourth Amendment 

attaches, does a U.S. citizen traveling abroad enjoy the full panoply 

of constitutional protections? And if not, why not? Whichever law 

professor—I would pick the one that gave me a bad grade in con 

law, but he is not here. So whichever—— [Laughter.] 

Mr. WITTES. I think I can take a crack at why the Administration—— 

Mr. GOWDY. Well, no, I mean, here is what I want. Does the 

Eighth Amendment apply? 

Mr. WITTES. So I think the background behind which the memo 

that this white paper is based on is critical to this question. 

Mr. GOWDY. I just—and I appreciate that. I just want to know 

does a U.S. citizen enjoy the full panoply of constitutional protections when they are traveling abroad? Because this memo said they 

may, or we are assuming. Does the Fourth Amendment apply? 

Mr. WITTES. Well, so I think—I will let an actual professor of 

constitutional law answer. 

Mr. GOWDY. Oh, I don’t care. Anybody who knows. Does the—do 

I have to abide by Miranda? 

Mr. WITTES. The Supreme Court said in Verdugo-Urquidez, it 

raises very serious, held that the Fourth Amendment does not 

apply abroad, and there are—— 

Mr. VLADECK. To noncitizens. 

Mr. WITTES. To noncitizens. There are—— 

Mr. GOWDY. I am not talking about noncitizens. I am talking 

about citizens abroad, do they or do they not—— 

Mr. VLADECK. The short answer is yes, right? The short answer 

is—— 

Mr. GOWDY. Oh, so the Eighth Amendment applies? 

Mr. VLADECK. Yes. Now the court—— 

Mr. GOWDY. And the Fifth Amendment applies? 

Mr. VLADECK. Yes. But courts—— 

Mr. GOWDY. And the Sixth Amendment applies? 

Mr. VLADECK. Courts have said, Congressman, that in that context the rights may vary in their scope. 

Mr. GOWDY. Okay. Well, this is where I am headed. How is the 

analysis different if it is a U.S. citizen that meets the department’s 

criteria that is in Charleston, South Carolina, instead of somewhere else? So if you have the same panoply of constitutional protections overseas as here, can you use the imminent threat argument to take out an American citizen on American soil? And if not, 

why not? 

Mr. VLADECK. Congressman, I think this goes back to a point we 

were discussing before, which is the relevance of the feasibility of 

capture piece of this. And—— 

Mr. GOWDY. So that is the only thing we get to hang our hat on 

is the feasibility from some senior-level DOJ official who decides 

whether or not it is feasible or not to capture me. 

Mr. VLADECK. Well, as I suggested, Congressman, I think that 

feasibility should be reviewable after the fact. But I think—— 

Mr. GOWDY. That is of little consolation if you are dead. 

Mr. VLADECK. I think that—— 
94 

Mr. GOWDY. Is there criminal review? 

Mr. VLADECK. If the Government wants to bring—if the Government wants to indict one of its officers for violating a criminal statute, certainly. 

Mr. GOWDY. So you think this memo would allow. Well, who 

would do it? Because that would be the executive branch, right? We 

have not had much success getting the executive branch to enforce 

laws against itself. I can just tell you in the 2 years I have been 

here, we are 0 for 3 or 4 on that. 

Mr. VLADECK. Well, Congressman, certainly, there is precedent. 

If this Congress wanted to revisit, for example, the independent 

counsel statute, I think we could have a very interesting hearing 

on that front as well. But—— 

Mr. GOWDY. Well, I am out of time. But Mr. Chairman, I would 

love at some point for the Justice Department, if we are not taking 

too much of their time, to come and explain to us whether this 

analysis is equally applicable to American citizens on American 

soil. Because the feasibility of capture is little consolation to me if 

that is the only thing protecting us from this operation. 

Mr. GOODLATTE. I thank the gentleman. And I would note that 

the invitation was extended, and it will stand open. 

The Chair now recognizes the gentleman from Florida, Mr. 

Deutch, for 5 minutes. 

Mr. DEUTCH. Thank you, Mr. Chairman. 

Mr. Bellinger, you said earlier in your testimony and then in an 

exchange with Mr. Nadler, you spoke about the need to have clear 

international rules. Mr. Nadler raised the question of what would 

happen if action were taken by other countries. And I had to excuse myself to attend another meeting, and if you have elaborated, 

I apologize for asking again. 

But this conversation that we are having about constitutional 

protections and how this drone program against al-Qaeda functions 

under our Constitution is obviously of the greatest import to this 

Committee. But the issue that you raise is a very good one. What 

are those international rules? Who sets them? What standards 

would be in place? 

And is it—well, let me actually let you elaborate a bit, and then 

I will ask a follow-up question. 

Mr. BELLINGER. No, I am delighted really that you asked that 

question. We know the Judiciary Committee, of course, is most concerned about the protection of Americans in this hearing. 

But as has been alluded to, 3,000 to 4,000 of the people who are 

dead are non-Americans. And so, in those cases, they don’t have 

constitutional rights. The rules that would apply to them would be 

international law. And both the Bush and the Obama administrations have tried hard to clarify that they are complying with international law. They are not using force in another country in violation of international law, or they are not killing people in assassinations or murders. 

That said, no other country in the world has come out publicly 

and said they actually agree with our position. That is a very unsteady place for the United States to be. I was the general counsel 

of the State Department. I wanted the United States to appear 

around the world to be acting in accordance with international law, 
95 

and the Obama administration has asserted this, and I believe that 

they are. 

But we are in a position where most other countries don’t agree 

with this, are beginning to accuse us of violations of international 

law. And the Administration needs to work harder really to clarify 

those rules. 

Mr. DEUTCH. What are the violations that—who is making those 

accusations, and what are they accusing us of? 

Mr. BELLINGER. We have got—other countries have begun to 

raise concerns. There are lawsuits now both in Pakistan and in the 

UK. There is a lawsuit against the British foreign secretary, suggesting that the sharing of intelligence information by the British 

government with the American Government may actually constitute war crimes. That is making British intelligence officials 

nervous. That is being closely watched throughout Europe. 

Mr. DEUTCH. What would those—in order to address these issues 

going forward, both because of potential actions that other nations 

may take that would put, as you described earlier, that will put our 

State Department spokesman in a most difficult situation to have 

to deplore those while standing up for the drone program that we 

utilize, what are the standards that would be put in place, though? 

And how—tell me what that regime looks like and where does it 

come from. 

Mr. BELLINGER. These are great questions. I spent 4 years as 

legal adviser in thousands of conversations with European allies, 

some of whom are actually in this room today, representatives of 

different embassies, listening to the Bush administration try to explain why what it was doing, which appeared to be improper, was 

actually lawful. 

And the Obama administration, which never expected to be in 

the same position of having allies around the world accusing it of 

illegal activity, frankly needs to go to the same effort now. And the 

rules would essentially be to say it is not to start with a treaty. 

This is too difficult to try to negotiate a 194 country treaty. But to 

agree on basic legal principles, such as a country can use lethal 

force against a terrorist in another country who is threatening an 

attack if that country is unwilling or unable to prevent that threat. 

In most cases around the world, 190 countries, the countries are 

able to prevent that threat. They can go arrest the person. Their 

polices work. But in four or five countries—Yemen, Somalia, Pakistan—we want to get countries around the world to acknowledge 

the United States or any country’s right under international law to 

use force to kill someone in another country who is posing a threat 

when it can’t be addressed in another way. 

I think we can get there, but it certainly makes other countries 

uncomfortable, and they are just not going to agree to our position 

unless we go out through some aggressive international legal diplomacy. I mean, really, it is a great line of questions. 

Mr. DEUTCH. And the likely position that some would take that 

would point to this hearing and the debates in this country and say 

you are having a hard time—hard enough time coming to terms 

with this idea at the very earliest stages of the potential that 

drones will offer. You are having a hard enough time coming to 

terms with this under your own Constitution, and now we are 
96 

going to have a broader discussion internationally. You are going 

to suggest to us what we should and shouldn’t do. 

I am not sure that we are quite at the point where that conversation can take place. 

Mr. BELLINGER. It is very difficult. The Bush administration 

spent a long time trying to explain to people why it was lawful just 

to detain people without trying them. Most other countries in the 

world said, ‘‘Wait a minute. You can’t hold someone without trying 

them. That is a basic element of due process.’’ 

Well, this is actually much more aggressive. The Obama administration isn’t just detaining them. They are killing them. And so, 

we need to work hard to explain, as a country that is committed 

to the rule of law, why to other countries who look to us for our 

example, why what we are doing is, in fact, legal. We can’t—it is 

important to have this hearing here, but we need to go around the 

world and explain why it is legal under international rules. 

Mr. DEUTCH. Thanks. I appreciate it, Mr. Bellinger. 

Mr. GOODLATTE. I thank the gentleman. Good questions, and the 

time has expired. 

The gentleman from Florida, Mr. DeSantis, is recognized for 5 

minutes. 

Mr. DESANTIS. Thank you, Mr. Chairman. 

Thank you all for your testimony. 

I guess I disagree a little bit with the characterization of this as 

very limited. I mean, it is limited in the sense, the DOJ analysis 

in the sense that they say all we are saying is that we have sufficient grounds in this instance. But they don’t say that they can’t 

go beyond that, and they don’t say that there is going to be more 

restrictions otherwise. 

Do you all agree with the fact that they base their analysis not 

simply on the AUMF, but basically said there is Article II authority 

and Article 51 authority, that if you didn’t have the AUMF, the 

President would still have the ability to engage al-Qaeda leaders 

overseas? 

Mr. CHESNEY. Well, I think the Administration would always 

take the position that it has the authority under Article 51 and Article II to defend the country against an imminent threat. That, of 

course, leaves open the question of what the substantive content of 

an imminent threat is. 

But to the extent that tomorrow Hezbollah presents an imminent 

threat, though it is totally outside the AUMF, the Administration 

would certainly assert the authority, both as a matter of Article 51 

and at a domestic level under Article II to counter that with lethal 

force. 

Mr. DESANTIS. And perhaps even if it wasn’t an imminent 

threat, such as the example of Libya, there was no congressional 

authorization for us to go and get engaged in Libya. So I am somebody who I really think the AUMF is important because I think 

that activates the President’s war powers. 

I think when you are dealing with these issues, whether you are 

going to treat it in a civil context or a law of war context, the fact 

that this Congress has authorized that, to me, means a lot. And so, 

I guess the logic of this analysis, although it only applies to senior 

al-Qaeda leaders, there is nothing preventing the Administration 
97 

from applying this in other contexts. I mean, you do have to make 

analyses that can apply to different facts. 

And so, I guess my question, and we can just start with Mr. 

Bellinger. Libya, no AUMF for Libya. We went in. It was an international coalition. My question is if there was an American citizen 

who, say, traveled to Algeria, joined the pro-Gaddafi army, was 

somebody who was a major operational leader in bringing arms 

into Libya, that would fight not only the resistance, but American 

forces and our allies, based on how you read the memo, do you 

think that they would have been justified or do you think this provides justification to engage an American citizen in that instance? 

Mr. BELLINGER. The answer is, under the memo, probably not. 

Because under your facts, the person would not be a senior operational al-Qaeda leader that was posing an imminent threat of violence to the United States. 

Mr. DESANTIS. Right. But what my question is, is they limit it 

to that, but the logic of what they are saying, why is it so important—if the AUMF is not critical, the al-Qaeda versus somebody 

who is fighting Gaddafi. So is there a logical distinction between 

those two if you don’t think the AUMF is critical? 

Mr. BELLINGER. Well, this Administration, of course, at least has 

said that they are relying only on the AUMF. There are a lot of 

us who wonder 12 years later how it can possibly be that all of this 

use of force in a lot of different countries around the world against 

people who may have only been 10 years old in 2001 still falls 

under the AUMF. 

So I think it is a good set of questions as to whether this Administration would rely on the President’s constitutional authority to 

strike somebody who did not fall in the AUMF. 

Mr. DESANTIS. And here is just where I am reading in the memo. 

In addition to the authority arising, in addition to the authority 

arising from the AUMF, the President’s use of force against alQaeda and associated forces is lawful under other principles of U.S. 

and international law, including the President’s constitutional responsibility to protect the Nation, the inherent right of national 

self-defense under U.N. Charter Article 51. 

I obviously agree with that if it is a truly imminent threat. The 

question is in a situation like Libya, where it is very much an 

intervention of choice, probably didn’t pose an imminent threat to 

the United States, how does this kind of framework apply in that 

instance with an American citizen? 

Mr. VLADECK. But I mean, Congressman, even there, I think the 

question would be suppose that we had a regimen of fighters stationed at an Air Force base in Libya. Presumably, if an American 

citizen who goes to Algeria to take up arms on behalf of proGaddafi forces is then involved in an attack on U.S. military forces 

who are involved, who are stationed there, then I think we 

wouldn’t have to talk—that wouldn’t be—— 

Mr. DESANTIS. Well, no, no. Right. But I agree with that. But not 

necessarily involved in an attack. Somebody who is across the border in Algeria, who is maybe doing logistics or something. 

Mr. VLADECK. And so, that is right. We haven’t talked a lot in 

this hearing about international law, but I think it is relevant. It 

would be very relevant at that point whether in fact what was true 
98 

in Libya was a non-international armed conflict or even an international armed conflict that would justify the assertion of military 

force. Because I think you would have both domestic law problems 

insofar as it was outside the scope of the AUMF or the war powers 

resolution and very serious international law problems if it was not 

part of a larger armed conflict. 

Mr. WITTES. May I just add something to that? So I think one 

of the oddities of the white paper—and I would actually think it 

is a very ripe area for this Committee to follow up with the Administration about—is exactly what work the word ‘‘imminent’’ is 

doing. It is not clear to me from reading the white paper whether 

the word ‘‘imminent’’ is an attempt to get over domestic constitutional hurdles, whether it comes from sort of resort to force questions in international law, the way Steve was just referring to, or 

whether it is an attempt to get around domestic criminal prohibitions against—as a sort of affirmative defense in domestic criminal 

prohibitions against murder of Americans overseas, or whether it 

flows from some other need. 

It is simply there as an apparently self-imposed constraint, and 

it is not exactly clear what legal problem it is designed to solve. 

And I think some of the questions that you are asking, the answers 

to them would be different depending on what work the word ‘‘imminent’’ is doing. And I sort of talk about this a little bit in my 

written statement, but I think it is an area that is very worth this 

Committee pushing the Administration for some clarification. 

Mr. DESANTIS. Thank you. And thank you, Mr. Chairman. 

Mr. GOODLATTE. Thank the gentleman. 

The Chair recognizes the gentleman from Texas, Mr. Gohmert, 

for 5 minutes. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

And this is an exceedingly important topic. We do appreciate 

your being here today. Obviously, the Justice Department’s folks 

are busy doing something more important than having oversight. 

I wish that they didn’t need it. 

All of these issues are deeply troubling, and I, like my friend 

former Judge Ted Poe, big believer in due process. We are talking 

about imminent attack is one of the issues, and we have got a lot 

of people that brought up the issue of al-Awlaki being killed in 

Yemen. But I think it is good to look ‘‘what if’’ scenarios before 

those scenarios actually happen. 

We know that al-Awlaki had led prayers for Muslim congressional staffers here on Capitol Hill. We know that he was probably 

not done in the United States. 

Can you foresee a time when someone like al-Awlaki is on a hit 

list, finishes what he was doing in Yemen, and somehow gets back 

in the United States? If there was concern of imminent attack 

while he was in Yemen, could there be those same concerns? When 

would it then be possible for someone on the hit list, as al-Awlaki 

was, to be hit in the United States proper? 

Mr. WITTES. Sir, I think the—sir, the al-Awlaki case will be 

someday the subject of a truly wonderful book. It is a very complicated and interesting history. 

I think if Anwar al-Awlaki had made it back to the United 

States, I don’t think there is dispute among anybody I have ever 
99 

spoken to that the proper way to handle him would have been for 

the FBI to arrest him and for him to be prosecuted in a U.S. Federal court. 

Mr. GOHMERT. But my question was not about what was proper. 

My question was about the possibility of someone on the hit list 

being found back in the United States, like al-Amoudi. 

Al-Amoudi was arrested in 2002 at Dulles International Airport. 

He was arrested, as you talk about, but he had been very close to 

the Clinton administration, had worked with the Bush administration, and yet we find out actually he was involved in supporting 

terrorism internationally. And so, he gets arrested, and now he is 

doing 23 years in prison. 

I am asking what could be the prospect that someone get back 

in the country, and from a political standpoint, their arrest could 

potentially, like al-Awlaki, if he started talking about the people he 

worked with on Capitol Hill, the people that he had met with and 

worked with, it obviously would be very politically embarrassing. 

What if you have hypothetically someone who has been working 

closely with a President. We know we had a member of a known 

terrorist organization meeting in the White House last year, even 

though Secretary Napolitano, sitting where you are, could not answer that she even knew that was happening when it was in the 

papers. By the time she gets over to the Senate, she then says, 

‘‘Oh, we checked. He was vetted three times.’’ 

There are things that could end up, hypothetically, proving so politically embarrassing that if somebody gets back in the United 

States, someone might look for a way to see that they never testify. 

We are talking hypothetically, but I am wanting to know what are 

the possibilities that something like that could happen? So that is 

my question. 

Mr. WITTES. Sir, nothing in the Administration’s white paper and 

the Attorney General’s speech would suggest that that would be 

lawful. And I would hope that any Administration, Republican or 

Democrat, faced with such a situation would behave like patriots 

and would proceed according to the law and the Constitution. And 

I would hope that this Committee, in the event that that did not 

happen, would consider it under its impeachment power. 

Mr. GOHMERT. And then when no one from the Justice Department cared to participate, then what? We find them in contempt, 

and then it goes to the U.S. attorney and nothing happens, as it 

just happened last year. 

Mr. WITTES. Sir? 

Mr. GOHMERT. Any other comments from anybody else? I mean, 

this is a real issue because not everybody under political pressure 

acts like patriots. 

Mr. CHESNEY. I can simply say that it is quite clear to me it 

would be unconstitutional to use lethal force against a person in 

that scenario precisely because capture would be feasible. He may 

still be part of an organization, may still be a senior leader in alQaeda, what have you. But—— 

Mr. GOHMERT. And what if your contention is there is imminent 

attack? It is planned. He helped set this situation up in Yemen, 

and we need to take him out. 

Mr. CHESNEY. Still unconstitutional unless—— 
100 

Mr. GOODLATTE. The time of the gentleman has expired. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Mr. GOODLATTE. I thank the gentleman. 

And the Chair recognizes the gentleman from Florida, Mr. Garcia, for 5 minutes. 

Mr. GARCIA. Real quickly—thank you, Mr. Chairman—what 

steps could the executive branch take to allow appropriate congressional oversight and an informed public debate? And that I leave 

it to all of you. 

Mr. BELLINGER. Well, maybe we will just go down the line here. 

One, I think the Administration does need to be more open in their 

legal analysis. I do think it is disappointing that they did not sent 

a witness. We are happy to be the second string here to try to help 

you out. 

But I, as a former Government official, think that it does—it is 

incumbent upon this Administration to put witnesses forward to 

explain and answer your questions. So that would be thing one. 

Second, I do think that the executive branch could work with 

Congress to craft a narrowly tailored law that would specify the 

circumstances in which an American can be targeted and the notice 

process to Congress. So I think that would be the main thing that 

the executive branch could do would be to work with Congress on 

narrowly tailored legislation that does not tie the hands of the 

President. 

I will go back on the judicial review point that we—in all these 

cases, we are talking about an armed conflict. And the gentlemen 

from Texas and South Carolina are no longer here, but we are talking about a situation where the President is dealing with a war, 

with an armed conflict. And it is really inappropriate to insert judicial review to tie the President’s hands in a war. 

No one would ever have suggested that before the President 

could order an attack against a German American who was a highlevel German leader that one had to go to a judge beforehand or 

afterhand to allow that German American’s family to come and 

have a judge perhaps tie the President’s hands. 

Mr. CHESNEY. Active participation and oversight efforts by this 

Committee and others obviously is critical, and I echo what has already been said on that point. I think—we were asked earlier how 

much consensus we had on the substantive and procedural issues 

that are driving all of this. I think it is fairly clear that we have 

consensus that it would be very useful for Congress to express 

itself, if it was willing to do so, as to what the substantive bounds 

of targeting an American ought to be. If there is an issue with the 

imminence standard or the feasibility of capture standard, this can 

be addressed. 

I don’t think we have consensus as to whether and to what extent a judicial role is either necessary as a constitutional matter or 

permissible. And I think I am probably the one who is most in 

favor of a permissible role, ex ante. Steve is the most in favor ex 

post, and I think other than that, we have an array of views here. 

Mr. WITTES. I think one thing the Administration could do is to 

talk more and more and more about what the internal procedures 

it is using actually looks like. So starting with the President’s 

speech at the National Archives in 2009, and particularly con-
101 

tinuing through Harold Koh’s speech at ASIL the following year, 

and in a series of speeches over the next 3 years really, the Administration talked a lot about the underlying legal regime, not at the 

level of granularity that a lot of people want, and I certainly would 

encourage them to be more granular on that score. 

But to me, the biggest hole is actually not a legal hole. It is a 

procedural hole, and it goes to the question that Congressman Nadler and I were discussing before. Not the substantive content of 

who you can target. They have been pretty clear about that. It is 

what hurdles do you have to go through before you conclude that 

somebody is in that basket at all? 

And on this question, they have said very, very little except to 

say repeatedly that there are rigorous internal checks. But I would 

like to see them, you know, talk more about what those internal 

systems look like. Almost everything we know about it is a result 

of press coverage and leaks. It is time for them to have something 

substantial to say on the subject. 

Mr. VLADECK. I don’t have much to add to my colleagues other 

than I think that the most interesting omission from the white 

paper is exactly what Mr. Wittes was suggesting, the lack of any 

sort of detailed explanation of the procedural process. If there are 

reasons why the specific facts and the intelligence that led us to 

discover those facts should be kept classified, that is one thing. But 

I don’t know why the bureaucratic process that is undertaken by 

the executive branch in a hypothetical case is a matter of national 

security. 

Mr. GARCIA. I think you can imagine the problem is that we 

argue about everything here, right? And so, the idea that we would 

put some kind of process forward. I fully understand your point, 

and I appreciate it. And as a lawyer, I think it is necessary. 

But the idea that that process would be put forward to then be 

analyzed in a vacuum without the exigency of circumstances is I 

think something that would be a debate that I understand your 

wanting it, but I understand under the present climate, it is just 

almost impossible. 

Mr. WITTES. I think there is a lot of merit to that point, and I 

also think there is an additional factor, which is not about this 

body, but it is about the FOIA litigation environment that the Administration is in. And one of the problems that, you know, within 

the bureaucracy people are constantly worried about is the incremental effects on FOIA litigation that every incremental disclosure 

has. 

And I think that that is every time you consider saying X, you 

know that you are going to get a brief filed in the next day that 

says you have now confirmed X, we want 2X. and I think somehow 

we need to figure out whether there is some kind of safe harbor 

that we could create that doesn’t actively discourage the Administration from making disclosures, particularly to this body—— 

Mr. GARCIA. Maybe that is where we should be working towards. 

I have listened to Johnson tapes where toward the end of the war, 

he got into this crazy habit of sitting with his Cabinet deciding 

where the bombs were going to land. It is just an insane process 

when you are engaged in war. I am sure I don’t have to make that 

point to all of you. 
102 

Likewise, I think you have watched the insane process that we 

partake of here when we argue how many angels fit on a pinhead. 

So maybe you putting forward a process that you think would be 

acceptable. I just find that if the President would engage in that, 

I think what he would be doing is opening up an argument for my 

friends on the right, which would be to say look at all the due process these guys get, right? And then a point from our side, which 

would say that is not enough due process. 

And then, of course, the whole point of this is missed, which is 

these are enemies of our country. We hope that when someone is 

elected from our side or the other side that they use this discretion 

of their office, which in this area tends to be pretty broad in wartime, with all the merit that we would expect someone who serves 

in that role. 

But gentlemen, thank you for your thoughtful answers, and 

thank you for your fighting for these issues. It is important. 

Mr. Chairman, I yield back the balance of my time. Thank you. 

Mr. GOODLATTE. I thank the gentleman. 

And the Chair is pleased to recognize the gentleman from Georgia, Mr. Collins, for 5 minutes. 

Mr. COLLINS. Thank you, Mr. Chairman. I appreciate it. 

I mean, as we come to sort of this timeframe, I think what is interesting is I agree with my gentleman from across the aisle. We 

do argue sometimes about things, the angels on the top of a pinhead. But the problem we have here today is we can’t argue about 

anything because Justice chose not to show up. They forfeited. 

They came. They had an opportunity, and instead of engaging 

within the confines, they chose to take a pass. They chose not to 

come again. 

It is interesting in your comments earlier about being in the 

Bush administration over to the Obama administration. It is amazing to me, as my grandmother used to tell me a long time ago, 

don’t criticize somebody too hard. You might be in their position 

one day. It is amazing what has happened now. They are in that 

position. 

And I think what has been said here on several occasions really 

highlights that. I believe honestly the Administration doesn’t want 

a definition of imminent threat because at that point then they 

have to actually define what is imminent and when is it going to 

be applied and in what area is it going to be applied? You don’t 

really want a feasibility of capture. 

I would tend to disagree, although this esteemed panel has said, 

well, if they were in the United States that they could always fall 

back on feasibility and that would exempt them. I am not so sure 

that is actually true, not in our society today. 

As we look at this, I do have the distinct concern is what is and 

how long this white paper depended on the AUMF. That was the 

basis of its whole determination. How long do you feel—in a sort 

of a short answer here, how long can this Administration or even 

follow-on Administration keep this argument? How long is this 

going to last? Especially when we have shut down the war in Iraq. 

We are getting ready to move out of Afghanistan. 
103 

And as someone who has served in Iraq in this area, I want to 

just in a brief answer—I have another question—how long can they 

continue to depend on this? 

Mr. CHESNEY. Sir, a couple years ago, my colleague Mr. Bellinger 

wrote an op-ed in the Washington Post warning that the AUMF 

was growing stale. More recently, Mr. Wittes, myself, Professor 

Jack Goldsmith, and Professor Matt Waxman just this week published a paper arguing that the growing threat of threats beyond 

AUMF is making it more and more imperative that Congress look 

at this issue very seriously. 

Mr. COLLINS. Well, I think the question also comes here, the determination of whether it be before the action is taken to the process of judicial review, if there is one, or standards review or opposed, which I have a question about that, which I will get to in 

a second. I think the issue that comes to my mind here is we don’t 

really have this review right now. There is that veil of secrecy, if 

you would. 

And I would say from this Administration, there is no one denying the Article II privilege. There is no one denying that there is— 

the ability is there. However, what we are having a real issue with 

here and I think the American people are having a real issue with 

is we have the secrecy going on. Explain at least in the sense when 

we are dealing with American lives overseas and you have a process that you say you have a process on, that is about like me going 

to my 14-year-old and saying, ‘‘Okay, what is your decision-making 

process?’’ ‘‘No problem, Dad. I’ve got a process.’’ ‘‘What’s your decision-making process?’’ ‘‘Just trust me.’’ This is not what we can 

take. 

I do have a question, though, about if we do it after the fact. Of 

course, I have a problem with the fact that they are dead. You 

know, that, to me, is sort of damages, as you put in your paper, 

never make you whole completely. 

But my question is, and you brought this up, we wouldn’t indict 

one of our own, and my colleague, I believe Mr. Gowdy from South 

Carolina, made this comment. We are not going to indict one of our 

own. And if we did, let us just play this out for a second. If we did 

decide who was at fault, my question for you is who would be at 

fault? 

What we have seen many times is we are going to throw the lowest person under the bus. It is going to be the drone operator. He 

should have disobeyed—so explain to me, if you can, what is the 

process? Where would you stop in culpability, and would it stop at 

the President? 

Mr. VLADECK. Congressman, I think it would depend on the decision-making process, which, as you mentioned—— 

Mr. COLLINS. Non-existent. 

Mr. VLADECK. Or I doubt it is non-existent. We are certainly not 

privy to it. And so, I think it would very much depend on who actually was the one who made the decision that had the legal error 

in it. Who is the one who said, oh, in fact, even though this guy 

only was at this guest house, that is enough to decide that he is 

a senior operational leader of al-Qaeda. And I think that would be 

where the buck would stop. 
104 

But if I may just briefly, I think the Congress could write a statute where the damages piece of it wouldn’t depend on who was actually at fault. The purpose of the Westfall Act is to say that when 

a Federal officer is acting within the scope of his employment, it 

is the Federal Government that is at fault writ large. We are not 

going to point the finger at one guy who is just doing his job. 

Mr. COLLINS. Well, we also know how that plays out in the press 

as well, and we also know how it will play out in Administration 

politics on really, frankly, both sides. This is the concerning part, 

Mr. Chairman, as we come to at least my ending here is, again, I 

want to state it again. As has been said many times before, but I 

think it is the Administration today had a chance to do what this 

President has said overall, that he wants to have an open Administration which reflects the priorities of his Administration and his 

people. This is not happening. They took a forfeit today. 

They took a forfeit, when they could have easily came. And if 

they said, no, I can’t talk about that, but we can talk about this. 

Or they could get with this Committee on a classified level. There 

are ways to do this. But simply ignoring a sitting Committee and 

saying we have got other things we want to do? Maybe there is 

other issues more pressing. 

But I think the American people, when they see this, this is a 

pressing issue. This is something that matters. Because in the end, 

you made a statement earlier today, Mr. Bellinger, that said, well, 

they say highlight it because we know of one incident. Do we really 

know we have one incident? Because we have not been able to see. 

That is the concern I have. 

And Mr. Chairman, this is why this is important. This is why 

this Committee needs to have the oversight, and this needs to have 

the Administration actually show up to the game. 

With that, I yield back. 

Mr. GOODLATTE. I thank the gentleman for his very pertinent 

comments. 

And I want to thank all the members of this panel for a very 

good exposition of the issues involved here. I, along with the gentleman from Georgia, the gentleman from New York, and others 

are very troubled by the fact that we have not had cooperation 

from the Administration in terms of producing important documents that we need to review to conduct our oversight properly or 

a witness on behalf of the Administration to testify to this. 

So we will continue to work together in a bipartisan fashion to 

conduct the oversight that is necessary and to take the next steps 

that may be necessary. But in the meantime, we probably will have 

additional questions for each and every one of you. And so, in a moment, I will ask for unanimous consent to allow Members to submit 

written questions to you, and we would hope that you would answer those as promptly as you can. 

This concludes today’s hearing, and without objection, all Members will have 5 legislative days to submit additional written questions for the witnesses or additional materials for the record. 

And the hearing is adjourned. 

[Whereupon, at 12:29 p.m., the Committee was adjourned.] 

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