On April 16, the Constitution Subcommittee of the Senate Judiciary Committee, chaired by Senator Dick Durbin of Illinois, is holding a hearing about U.S. drone strikes in Pakistan, Yemen, and Somalia: about their Constitutionality, about their legality, about whether they are really in the interest of the United States, and about whether they are just and moral.
This is historic. There's never been such a Congressional hearing before.
Before this year - before President Obama nominated John Brennan to head the CIA - there was virtually no public Congressional discussion of the drone strike policy at all. Then a bipartisan group of eleven Senators led by Ron Wyden wrote to the Obama Administration, hinting that if the Administration didn't hand over to the Senate Intelligence Committee the secret Justice Department Office of Legal Counsel memos which purport to legally justify the drone strike policy, there could be problems with the Brennan nomination. Wyden continued to insist that the memos had to be handed over prior to Brennan's confirmation, and finally the Administration complied, at least in part, turning over some drone strike memos to the Senate Intelligence Committee.
As of this writing, the Administration has still not handed over any drone strike memos to the Senate Judiciary Committee, chaired by Senator Patrick Leahy of Vermont, although 1) the Judiciary Committee is supposed to oversee the Justice Department, which produced the memos; 2) Attorney General Eric Holder stated in Senate testimony that you need the memos to understand the leaked "white paper" on the drone strike policy; and 3) Senator Leahy has threatened to issue a subpoena for the memos.
It was the Senate Intelligence Committee, not Senator Rand Paul, which first raised, in its pre-confirmation written questioning of John Brennan, the question of whether the Administration was claiming that it had the legal authority to conduct drone strikes in the United States. Brennan answered: "This Administration has not carried out drone strikes inside the United States and has no intention of doing so." And that answer drove a lot of people wild - not just Senator Rand Paul - because it was clearly a dodge of the question. The question was about what legal authority the Administration was claiming, not about what it was planning to do. It was Senator Rand Paul's unhappiness with Brennan's response to the Senate Intelligence Committee's question that led to Paul's historic talking filibuster (should there ever be any other kind?) of Brennan's nomination.
So now, as of this year, we can say that there's been "discussion of the policy in hearings," and a discussion of the policy on the Senate floor (the filibuster) but until now, there still hasn't been a prominent, media-covered Congressional hearing focused on the policy.
That's going to change on April 16.
That means that Durbin's hearing could be a historic opportunity for Americans to learn something about what is actually going on with the drone strike policy.
That could be a game-changer. The status quo is that many Americans - in particular, many Democrats and liberals - have no idea what is going on under the "secret" drone strike policy. And this is reflected in polls.
On March 14, the Huffington Post published a poll saying that the majority of Democrats thought that Senator Paul's filibuster was "an unnecessary political stunt."
To come to that conclusion, you had to be late to the movie. The movie didn't start with Paul's filibuster. Was it an unnecessary political stunt when Wyden's group of eleven wrote to the Administration, threatening Brennan's nomination unless the Administration handed over the drone strike memos? The letter got the attention of the Administration, but it didn't get the attention of the public. The filibuster got the public's attention, because it turned the volume up to eleven. It was one louder. On February 8, the Huffington Post reported that the opinion on the drone strike program of the majority of Americans - including the majority of Democrats - depends on who is being killed. The majority support the use of drone strikes to target top terrorist leaders, not anyone suspected of being associated with a terrorist group. A plurality opposes drone strikes if there is a risk of killing innocent civilians.
Thus, the majority of the public supports the policy that the Administration has announced. The majority of the public does not support the policy that the Administration has actually been executing. More transparency could reveal the gap between the policy that the Administration has announced and the policy that it has been executing; it could reveal to the public that it doesn't actually support the policy that has been taking place. Superficially, we have a paradox: the same people who are telling the Huffington Post that they would oppose Administration policy if they knew what it was are also telling the Huffington Post that they are ambivalent about political tactics that might be necessary in order for them to find out.
To understand that there's a crucial difference between the policy that the Administration has announced and the policy that it has actually been executing, you have to know something about what has actually happened in Pakistan with the drone strikes since 2004. That's what the majority of Democrats have no idea about. And that's what Durbin's hearing could change.
But in order for Durbin's hearing to change that, he has to invite witnesses who can speak to that. He has to invite witnesses who can speak with authority to what has actually been happening in Pakistan.
Now, of course, it is not true that there are only two people in the world who can do that. But it is true that there are two people who could definitely do that, who live in the U.S., who are professors of law who went to Pakistan and interviewed survivors of U.S. drone strikes and wrote a report about it. And although I haven't asked them, I feel confident that if Durbin invited them to his hearing, they would clear their calendars for April 16. Durbin should invite them, and he should say publicly that he supports issuing a subpoena for the drone strike memos if the Administration won't hand them over.