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Mr. DURBIN. I would say to my friend from Kentucky that I am chair of the Constitution, Civil Rights and Human Rights Subcommittee of the Judiciary Committee. We are scheduling a hearing on the issue of drones, because I believe the issue raises important questions, legal and constitutional questions. I invite my colleague to join us in that hearing if you wish to testify. I think this is something we should look at and look at closely. That is why this hearing is being scheduled. I believe at this moment it is premature to schedule a vote on this issue until we thoroughly look at the constitutional aspects of all of the questions the Senator has raised today, which are important.
Because of that, I have no alternative but to object.
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Mr. DURBIN. I thank the Senator from Kentucky, and I apologize to my friend from Wisconsin. I know he has been waiting. But the question asked by the Senator from Pennsylvania prompted me to recall a specific set of circumstances which I think address his concerns, our mutual concerns, about the use of lethal force.
I know we are talking about this in the context of drones, but a drone is a weapon, and there are other weapons by which our government can use lethal force to kill people.
So I think, going to the question the Senator asked Mr. Brennan, in a more generic sense, the question is, When can our government use lethal force in the United States against perhaps U.S. citizens? I think it is a legitimate question.
I was not misleading the Senator earlier when I said there is a scheduled hearing--the only scheduled hearing--on this question coming up before the Judiciary Subcommittee on the Constitution, which I chair. And the ranking member is Senator Cruz of Texas who was here earlier.
So I think it is important, and it is an important constitutional question, but, while my colleague from Pennsylvania is here, I wish to recount a set of circumstances for him, and then pose a question to the Senator.
The circumstances were September 11, 2001. Some of us were in this Capitol Building, in fact, just outside this door. As we came to work, we heard that some plane had crashed into the World Trade Center in New York. As we were watching on television, a few minutes after 9, a second plane crashed into the World Trade Center--the adjoining building. We all know what happened following that.
As we were in our meeting here, just a few feet away, we started seeing black, billowy smoke coming across the Mall right outside our window here. A third plane, taken over by these terrorists, was crashing into the Pentagon. What we did not know at the time was that there was a fourth plane. But we evacuated the Capitol. All of us, literally every one, raced out of this building to stand on the lawn outside. It was not a safe place, but we did not know where to go--all the tourists, all the staff, and all the rest.
It was not but a few minutes that we were out there, and we heard something that sounded like a shot, a discharge of a weapon. In fact, it was fighter planes that were being scrambled to protect the United States Capitol. At that time, the order had gone out to all commercial airplanes in the United States: Land immediately, so that we would know who was in our airspace and not responding to that command.
It turns out there was a fourth plane involved, and that plane crashed in Pennsylvania, we believe because of the heroism and bravery of the passengers on board; that when they realized what was happening, they tried to take control of that plane before it could be used as a weapon.
Many people believe that plane was aimed for this building or for someplace in Washington, DC. We had scrambled our military planes. And had that plane not crashed into the countryside in Pennsylvania and come within the airspace of this Capitol, I think we know what would have happened. Our government would have used lethal force--military lethal force--to shoot down a civilian airplane that was threatening, we believed, the lives of innocent Americans. It would have been the use of lethal force on our soil to stop a person or persons whom we believed were terrorists about to kill innocent Americans.
So when I listened to the response from Attorney General Holder in hypothetical and put it in the context of 9/11, I can imagine that President Bush might have been called on in an instant to make a decision as Commander in Chief to bring down the fourth plane before it crashed into another building and killed innocent people.
That is a circumstance, I would say to the Senator from Pennsylvania and the Senator from Kentucky, which I fully understand and expect the Commander in Chief to respond to.
So I do not think this is such a clear and easy situation. It is important that we have this hearing and explore the many possibilities--the possibility of a terrorist overseas who threatens our safety and the use of lethal force, drones or otherwise, the possibility of a non-U.S. terrorist in the United States and use of lethal force to deter them. And then obvious questions: What if it is a U.S. citizen overseas? What if it is a U.S. citizen in the United States?
I joined 10 other Senators asking for the same legal memos, which I think the Senator would like to see as well, justifying whatever course of action this administration has used. I think it is a legitimate constitutional responsibility of the Senate and the House and this Congress.
But I also understand, having lived through--as all of us did in some respect--9/11, the complexity of those decisions that have to be made in such a fashion.
So my question to the Senator--as I said before, we have to end with a question mark--don't you consider the situation of 9/11 and the use of lethal force, even military force, to shoot down a civilian plane--if it had survived the passenger effort in Pennsylvania and was headed for the U.S. Capitol--to be a legitimate exercise of a Commander in Chief to protect the United States?
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Mr. DURBIN. Will the Senator yield further for a question?
The white paper that has been presented to us by the Justice Department concludes that the right to national self-defense and the 2001 authorization to use military force gave the U.S. Government legal authority to kill a U.S. citizen in a foreign country that is not an area of active hostilities, if the target is a senior operational leader of al-Qaida or an associated force. So it is qualified in that regard.
The white paper argues, such an attack does not violate the constitutional rights of a U.S. citizen in this circumstance, ``if he poses an imminent threat of violent attack against the United States.'' Imminent threat. No. 2, ``his capture is not feasible,'' or the Justice Department white paper goes on to say, ``and the operation complies with the law of war principles, such as the need to minimize collateral damage.''
I will say to the Senator, I stand with him. I want an answer to his question. I think we should pursue it on a bipartisanship basis, as we have many issues together in the past. I think it is a legitimate question. But I would say that the white paper we have been given relative to this U.S. citizen overseas has some fairly narrow circumstances in terms of the use of force.
When it comes to the use of that force in the United States, I believe the circumstances should be just as narrow, if not more. I would say to the Senator, I am genuine in my concern for bringing these issues out in a full hearing of our constitutional subcommittee. I think I have answered the question. I hope he appreciates my sincerity.
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Mr. DURBIN. This is getting perilously close to a debate, and I am sorry, for those observing, it looks like the Senate is actually in a debate.
The obvious question is was bin Laden an imminent threat to the United States when we took him out? I think he was.
Was he hatching a plot to cause harm to the United States in an imminent manner? Probably not.
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Mr. DURBIN. Mr. President, let me first, on a personal note, thank the Senator from Kentucky. He and I have agreed on many things and worked together on many more, and there is much common agreement on what we hope to achieve with this issue, as important as it is, and I thank him for his spirited defense of his position today in these 12 hours. I want to excuse him from the floor whenever he wishes.