Prepared Statement of Ranking Member Chuck Grassley of Iowa
U.S. Senate Committee on the Judiciary
Subcommittee on the Constitution, Civil Rights and Human Rights
Hearing on “Drone Wars: The Constitutional and
Counterterrorism Implications of Targeted Killings”
Tuesday, April 23, 2013
Mr. Chairman, thank you for holding today’s hearing on the legal and strategic implications of using unmanned drones as part of our international counterterrorism strategy.
Article II of the Constitution confers on the president the role of Commander in Chief. As such, it confers the responsibility and authority to order action in defense of the nation. This includes ordering lethal action if necessary and justified under the law.
I look forward to hearing from today’s panel of witnesses and hope that they can help shed light on the legal and operational boundaries for the use of such force.
This hearing is particularly important given the reluctance of the Administration to provide clear answers on this topic. For example, if the Administration had come out earlier and said that they would not use drones to target American citizens on U.S. soil—something the Attorney General has now explicitly ruled out—the President could have avoided a filibuster on the floor of the United States Senate.
It should never have taken a filibuster for members of Congress to get a clear answer about when the Executive Branch thinks it can kill an American citizen.
Nor should it have taken over a year for the Administration to respond to joint requests from Chairman Leahy and me about the legal justifications for targeted killings.
With proper and lawful justification, I believe that the limited and responsible use of drones can be a valuable tool in the international war on terrorism and combatting those who would do harm to the United States.
On the surface, the idea that the use of drones to target a foreign terrorist believed to be involved in terrorism seems reasonable. However, those questions are by no means clearly defined under the law of war and become increasingly muddled when an American citizen is involved.
This difficulty was highlighted in the plurality opinion from the Supreme Court in Hamdi v. Rumsfeld. That decision upheld the notion that an American citizen captured on the battlefield in Afghanistan could be detained incident to war. Clearly, if the President has the lawful constitutional authority to detain incident to war, that would include the ability to use lethal force as part of those hostilities.
However, this legal basis is not necessarily the same when applied to a U.S. citizen on U.S. soil. Indeed the Court in Hamdi also found that prolonged detention by the Government warranted review via Habeas Corpus.
So, given this complexity, it is good to have a hearing to discuss this power and the constraints on the Executive Branch in using it.
Our constitutional oversight responsibilities require us to probe a little deeper and demand more transparency from this Administration to make sure this powerful tool is not being abused.
When we are dealing with a situation where the Executive Branch decides that a person is involved in terrorist activities sufficient to warrant killing by a drone strike, we need to be sure we understand what standard of proof they are using to put such a label on a person.
Additionally, the question becomes more complex when the person being targeted overseas is an American. How does the Administration decide that such an American is a terrorist and order his death by drone without due process? What level of proof is required? How reliable is the information being considered?
It is important that the Administration provide transparency to the legal framework so that we can make sure that proper safeguards are in place to ensure that there is responsible use of drone strikes in the war on terror.
I look forward to discussing these issues with our panel.
Thank you.
