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"  Yesterday, the House Judiciary Committee held a public hearing: &amp;quot;Drones and the War on Terror: When Can the U.S. Target Alleged American Terrorists Overseas?&amp;quot; The hearing was called after the legality of US lethal counterterrorism tactics took center stage with the leak of the Department of Justice white paper on targeted killings. However, the focus of yesterday&amp;#039;s hearing and the content of the white paper fail to address the vast majority of killings that the US is actually conducting. Focusing primarily on the intersection of drones and US citizens threatens to distract attention from the heart of the killing program and the most troubling international legal and policy concerns about it. The emphasis of the hearing and the sole legal question in the white paper were both on the specific question of when an American citizen who is a member of al Qaeda or an associated group can be targeted. That is a crucial question. But in the context of actual US practice, to focus debate there is to miss most of the story. First, of the thousands killed in Pakistan, Yemen, and Somalia, only four are known to have been American. By Senator Lindsay Graham&amp;#039;s estimate of 4,700 killed, US citizens number less than 1%. That percentage gets even tinier if one includes the people killed in targeted airstrikes or night raids in Afghanistan. Second, by focusing on &amp;quot;personality strikes&amp;quot; of known US citizens, the hearing and the white paper neglected a vast area of drone warfare: &amp;quot;signature strikes&amp;quot; carried out based on patterns of behavior and not against named individuals. In other words, the congressional hearing and the white paper focused on a category of strikes that are easiest to justify legally (against suspected high-level known targets), but largely ignored some of the most troubling aspects of the US killing program. US officials are still yet to clarify or disown leading newspaper reports that &amp;quot;military aged males&amp;quot; killed in the proximity of some aerial strikes have been counted as &amp;quot;militants&amp;quot; absent exonerating evidence.  Personality and signature strikes appear to be so different from each other that Richard Haass, President of the Council of Foreign Relations, recently wrote of ways to continue targeted killings in compliance with international law and sound policy, but he also called for pulling the plug on signature strikes. Whether or not we agree with Haass, how unfortunate that those practices-and their relationship to drone warfare-were not a central part of the congressional inquiry. And the last, crucial point is about the questions surrounding the white paper&amp;#039;s multiple restrictions on lethal attack: the threat must be imminent, capture must be infeasible, and the target must be a &amp;quot;high level&amp;quot; leader. Do these constraints apply only to US citizens, or all targets? In the Justice Department&amp;#039;s analysis these requirements appear to be part of the due process protections afforded to US citizens abroad as a constitutional right. It is impossible to tell from the white paper whether the government considers attacks on foreign nationals to be subject to anything close to those constraints.  What we do know suggests the opposite. For example, the number of confirmed strikes on &amp;quot;high level&amp;quot; leaders has been reported to be low - about 2% of those killed. And, in Afghanistan, the administration has filled its kill list with dozens of suspected financiers who surely could not meet even the Justice Department&amp;#039;s standard of imminent threat. So that leaves us with an enormous question: what constraints does the government believe it is operating under in determining who can be killed? The hearing largely, and the white paper completely, avoided that question. Although inspired by the white paper, the hearing narrowly focused on one technological measure for killing US citizens: drones. Much of the public debate since the leak of the white paper has also focused on the use of drones. It is entirely understandable that drones have come to dominate debates, given their key role in the US killing program, and the range of policy questions remotely piloted aircraft raise. The white paper, however, is not about drones per se. In fact, its legal analysis would not need to change a single word if the US ended the drone program tomorrow. Instead, the document is about the conditions under which a category of individuals can be killed regardless of the technological means involved in bringing about their death. Drones, in other words, risk being turned into somewhat noisy distractions. Senators demand the administration tell us whether it believes drones could be lawfully used to kill people inside the United States, and the administration assures us that it &amp;quot;has not carried out drone strikes inside the United States and has no intention of doing so.&amp;quot; But drone technology itself-however much it has facilitated the rapid growth in US killings outside the battlefield of Afghanistan-generally does not of itself raise unique legal questions.  The fundamental legal question boils down to this: when is the government legally permitted to kill? And properly understood, what the white paper does is set out legal rules that allow targeting US citizens whether they are killed in a hotel room by a bullet or killed in a car by a missile fired from a drone. The title of the hearing yesterday, and the topic submitted to its witnesses, perpetuates a myth that addressing drones as such gets to the crux of the legal problem.  The hearing provided a much-needed opportunity for informed public discussion, but it alone falls far short of what is required. Indeed, the white paper and the hearing both leave vital questions unanswered. These include:   What legal constraints apply to targeted or signature killings of foreign citizens (for example, what is the difference between the constitutional &amp;quot;feasibility&amp;quot; standard and a feasibility test, if any, under the laws of war)?   Are signature strikes lawful and sound policy?   What criteria for &amp;#039;associated forces&amp;#039; is the US applying? What international rules constrain night raids?  What is the civilian impact of US strikes and what is the definition of &amp;quot;civilian&amp;quot; being used?   Additional hearings should be held, including witnesses from various perspectives, to address the range of important issues that affect the US killing program. Now is not the time to lose focus on the issues that are most relevant to the program&amp;#039;s legality and effectiveness. Ryan Goodman is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, where he also serves as Co-Chair of the Center for Human Rights and Global Justice. Sarah Knuckey is Director of the Project on Extrajudicial Executions at New York University School of Law. Follow them both on Twitter: @rgoodlaw and @sarahknuckey "^^<http://www.w3.org/2001/XMLSchema#string>
<http://www.esquire.com/news-politics/news/a20113/drones-congress-terror/>