112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-704
======================================================================
DIRECTING THE ATTORNEY GENERAL OF THE UNITED STATES TO TRANSMIT TO THE
HOUSE OF REPRESENTATIVES, NOT LATER THAN 14 DAYS AFTER THE DATE OF THE
ADOPTION OF THIS RESOLUTION, ANY DOCUMENTS AND LEGAL MEMORANDA IN THE
ATTORNEY GENERAL'S POSSESSION RELATING TO THE PRACTICE OF TARGETED
KILLING OF UNITED STATES CITIZENS AND TARGETS ABROAD
_______
December 18, 2012.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
ADVERSE REPORT
[To accompany H. Res. 819]
[Including Committee Cost Estimate]
The Committee on the Judiciary, to whom was referred the
resolution (H. Res. 819) directing the Attorney General of the
United States to transmit to the House of Representatives, not
later than 14 days after the date of the adoption of this
resolution, any documents and legal memoranda in the Attorney
General's possession relating to the practice of targeted
killing of United States citizens and targets abroad, having
considered the same, reports unfavorably thereon without
amendment and recommends that the resolution not be agreed to.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 3
Committee Consideration.......................................... 3
Committee Votes.................................................. 3
Committee Oversight Findings..................................... 3
New Budget Authority and Tax Expenditures........................ 4
Committee Cost Estimate.......................................... 4
Performance Goals and Objectives................................. 4
Advisory on Earmarks............................................. 4
Section-by-Section Analysis...................................... 4
Purpose and Summary
H. Res. 819, introduced by Rep. Kucinich, directs the
Attorney General to transmit to the House of Representatives
any documents and legal memoranda in the Attorney General's
possession relating to the practice of targeted killing of
United States citizens and targets abroad.
Background and Need for the Legislation
Per the Rules of the House, a Member may address a
resolution of inquiry ``to the head of an executive
department.'' The resolution is privileged and may be
considered at any time after it is properly reported or
discharged from the committee(s) of jurisdiction. If the
resolution is not reported to the House within 14 legislative
days after its introduction, a motion to discharge the
committee from its further consideration is privileged. Should
the committee(s) of referral report within the 14 day period,
only a designee of the committee can move to proceed to the
consideration of the resolution on the floor.\1\
---------------------------------------------------------------------------
\1\See Rules of the House of Representatives, Rule XIII, Clause 7.
---------------------------------------------------------------------------
The Administration's targeted killing of terrorists abroad
is a proper and important matter for Congressional oversight.
But a resolution of inquiry is a rare procedure. More
traditional paths of oversight have been yielding information
about the Administration's targeted killing of U.S. citizen
terrorists abroad. Because the Administration has not yet
demonstrated the sort of obstruction in this matter that would
warrant a resolution of inquiry, the resolution should be
reported unfavorably.
For example, ordinary oversight processes for keeping the
House and Senate Intelligence Committees apprised of the
targeted killing program appear to have been followed. Title 50
requires the Director of National Intelligence and the heads of
all departments, agencies, and entities of the United States
Government involved in a covert action to furnish to the
congressional intelligence committees any information or
material concerning covert actions (including the legal basis
under which the covert action is being or was conducted) which
is in the possession, custody, or control of any department,
agency, or entity of the United States Government and which is
requested by either of the congressional intelligence
committees.\2\
---------------------------------------------------------------------------
\2\See 50 USC 413b.
---------------------------------------------------------------------------
Additionally, the House and Senate Intelligence Committees
continue to conduct robust oversight into the drone program
that targets terrorists and their associates. As of June of
this year, both Intelligence Committees conducted 28 monthly
in-depth oversight meetings to review strike records and
question every aspect of the program including legality,
effectiveness, precision, foreign policy implications and the
care that is taken to minimize noncombatant casualties.\3\
---------------------------------------------------------------------------
\3\Ken Dilanian, ``Congress zooms in on drone killings,'' Los
Angeles Times, June 25, 2012.
---------------------------------------------------------------------------
Oversight of the program has also been ongoing, with some
progress, on the Judiciary Committee. On December 4, 2012,
Ranking Member Conyers (D-MI), Representative Nadler (D-NY),
and Representative Scott (D-VA) sent a follow up letter to
Attorney General Holder requesting additional information
regarding the legal and factual justifications behind the use
of targeted drone killings of both U.S. citizens and non-
citizens. This was a follow up letter from a May 21, 2012
request in which they received some responsive documents,
including a White Paper describing the legal rationale behind
the al-Awlaki killing. The Department has not expressed an
unwillingness to cooperate with the latest request.
Administration officials have also disclosed their legal
rationale for this program in public addresses. In an address
to the Yale Law School, Department of Defense General Counsel
Jeh Charles Johnson stated that belligerents who also happen to
be U.S. citizens do not enjoy immunity where non-citizen
belligerents are valid military objectives. He relied on
principles from Ex Parte Quirin\4\ and Hamdi v. Rumsfeld\5\,
which stated that ``[a] citizen, no less than an alien, can be
`part of or supporting forces hostile to the United States or
coalition partners' and `engaged in an armed conflict against
the United States.''\6\
---------------------------------------------------------------------------
\4\317 U.S. 1 (1942).
\5\542 U.S. 507 (2004).
\6\Jeh Charles Johnson, (February 2012) Dean's Lecture at Yale Law
School, New Haven, CT.
---------------------------------------------------------------------------
Finally, the Attorney General and others have addressed the
legality of using targeted killings of U.S. citizens abroad.
The Attorney General publicly stated that ``an operation using
lethal force in a foreign country, targeted against a U.S.
citizen who is a senior operational leader of al-Qaeda or
associated forces, and who is actively engaged in planning to
kill Americans, would be lawful at least in the following
circumstances: first, the U.S. government has determined, after
a thorough and careful review, that the individual poses an
imminent threat of violent attack against the United States;
second, capture is not feasible; and third, the operation would
be conducted in a manner consistent with applicable law of war
principles.''\7\
---------------------------------------------------------------------------
\7\Eric Holder, (March 2012) Speech Before the Northwestern School
of Law, Chicago, IL.
---------------------------------------------------------------------------
Hearings
No hearings were held in the Committee on H. Res. 819.
Committee Consideration
On December 13, 2012 the Committee met in open session and
ordered the resolution H. Res. 819 adversely reported without
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H. Res. 819.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Committee Cost Estimate
In compliance with clause 3(d)(2) of rule XIII of the Rules
of the House of Representatives, the Committee estimates that
implementing the resolution would not result in any significant
costs. The Congressional Budget Office did not provide a cost
estimate for the resolution.
Performance Goals and Objectives
Clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives is inapplicable, because H. Res. 819 does not
authorize funding.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H. Res. 819 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
H. Res. 819 directs the Attorney General to transmit to the
House of Representatives any documents and legal memoranda in
the Attorney General's possession relating to the practice of
targeted killing of United States citizens and targets abroad.
