Congress may consider adding more oversight to the White House’s use of drones to kill American citizens who are in other countries as part of the war on terror, including a level of judicial review, a panel of legal experts testified on Capitol Hill February 27.

The reason the government must go to the courts to get authority for electronic surveillance – but not go to the courts for a targeted killing of an American – is because at one time Congress grew concerned about surveillance and made laws about it, Arnold & Porter partner John Bellinger told the House Judiciary Committee.

"Congress could do this in this case, and I think that’s something this committee ought to think about," said Bellinger, the top lawyer at the State Department during George W. Bush’s second term. For instance, Congress could specify the circumstances the executive branch must satisfy before targeting Americans, and then have a process requiring the White House to report back to Congress, he said.

The testimony came at a hearing examining the legal issues raised in a Department of Justice "white paper" that was leaked to the media earlier this month. The paper gave more details about the White House legal justification for the targeted killings, as a summary of an opinion from the DOJ’s Office of Legal Counsel.

In a statement opening the hearing, Committee Chairman Representative Bob Goodlatte (R-Va.) criticized President Barack Obama’s secrecy on the issue.

"One of President Obama’s first acts as President was to release the Bush Justice Department’s enhanced interrogation techniques memos to the public," Goodlatte said. "But he now refuses to provide his Justice Department’s targeted killing memos not just to the public but even to congressional overseers."

Goodlatte and Representative John Conyers (D-Mich.) also criticized the DOJ, which did not send anyone to address the committee on the issue. Conyers said he thinks Attorney General Eric Holder Jr. is obligated to testify about the issue before the committee, because the panel that clearly has jurisdiction.

Bellinger agreed with DOJ’s principal conclusions that drone strikes against Americans in foreign countries are legal, while American University Washington College of Law professor Stephen Vladeck said that virtually everyone agrees there are at least some circumstances where it is unquestionable that the government can use lethal force against its own citizens.

Bellinger said he did not think prior judicial review is required for targeting Americans abroad if the White House must report to Congress. Vladeck and another law professor suggested ways Congress could ensure the White House actually follows the criteria of who should be targeted.

The main question, Vladeck testified, is how the public and Congress can be sure the executive branch satisfied all requirements of the drone program. He suggested Congress could allow for after-the-fact, lawsuits from drone strike victims’ families before the ordinary federal district courts.

"To my mind, the only answer to the hard questions raised by targeted killings are for Congress to allow courts to review, not beforehand, but afterwards, just as courts do when our law enforcement officers use lethal force," Vladeck said.

University of Texas School of Law professor Robert Chesney testified that a judicial review process would have to be narrowly tailored to be likely to withstand constitutional challenges. Those limits would include ensuring the review only pertained to the targeting of American citizens and did not appear to call for a second-guessing of decisions in the purview of military commanders.

Contact Todd Ruger at truger@alm.com.