A Preview Of Brennan's Confirmation Hearings

NEAL CONAN, HOST:

This is TALK OF THE NATION. I'm Neal Conan in Washington. This afternoon, the Senate Intelligence Committee takes up the nomination of John Brennan to be the next director of the CIA, a hearing that will feature a festival of euphemisms. One man's targeted killing is another man's assassination.

In particular, questions are expected about how the U.S. justifies drone strikes in countries where we're not engaged in warfare, places like Pakistan, Yemen and Somalia. Estimates of the numbers killed vary, but at least 1,000, an unknown number of them innocent, and at least four of them America citizens, which raises any number of questions about due process, judicial review and congressional oversight.

Drone strikes started during the Bush administration, accelerated under President Obama. No one has had a bigger role in choosing targets and recommending attacks than John Brennan, who served as the president's counterterrorism chief.

Proponents say they've reduced al-Qaida to a shadow of its former self and helped prevent terrorist attacks in the U.S. Critics argue it's neither legal nor moral and could create more terrorists than it kills. It also sets a precedent that other countries may follow.

For many these questions are not easy. How do you fight a transnational organization that plots to attack the United States from remote areas of failed states? Our phone number, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Later in the program, a penguin colony in Antarctica previously unknown to humans. But first we turn to the John Brennan hearing, and we begin here in Studio 3A with Julian Barnes, Wall Street Journal's Pentagon reporter. Thanks very much for coming back on the program with us.

JULIAN BARNES: Thanks for having me.

CONAN: And I have to begin, just this past weekend we saw the publication of the leak of a memo to NBC that published for the first time a justification for the death of an American, targeting an America.

BARNES: That's right. I mean, we have seen some of this before in speeches by Attorney General Eric Holder and John Brennan himself, outlined some of this in a speech as well. But there were some more, new details in this memo. It's not the real memo that senators wanted; that's the Justice Department Office of Legal Counsel memo that they're going to be shown in secret this week.

But this memo did provide some new details of how the administration sees or defines an imminent threat and who they can target.

CONAN: Including American citizens, and imminent threat, well, imminent seemed to be an elastic term in this memo.

BARNES: That's right. Critics said this is exactly what they feared, that imminent threat didn't mean a ticking time bomb, it just meant somebody who was opposed to the United States, had actively plotted in the past, and that there was no evidence that they had given up that plotting. That certainly applied to Anwar al-Awlaki, who they - was the main target of the September 2011 strike.

But critics say that, you know, that could apply to a whole host of people and not just folks who are having a plot against the homeland in a matter of hours, days or weeks.

CONAN: And who, according to this memo, gets to make the decision that Mr. Awlaki or anybody else is on the kill list?

BARNES: Well, you know, we need to know more about exactly how this - who is making the decisions. Clearly the counterterrorism advisor has a big hand in it. The president has a big role in it. But, you know, we don't know still who's presenting the evidence for and against a strike. And they've - John Brennan, Eric Holder have said there is due process in this, in weighing a drone strike, but we don't know exactly what that due process is.

CONAN: And due process is something that we consider something of a judicial function.

BARNES: That's right. I mean, we don't - traditionally when you say due process, you think of a court review. In this case they've said executive due process is good enough to allow a drone strike to come forward.

CONAN: And executive due process - Congress, this memo says, also has no role here.

BARNES: That's right. And, you know, the Intelligence Committee has been briefed on some of these strikes, but they're certainly not briefed before they happen. There's a lot of critics throughout Congress who want to see more oversight and more made public about this drone campaign.

CONAN: Well, there was a letter signed by, I think, 11 senators, including some members of the Intelligence Committee, saying we need to know more, the American public needs to know more, and this after what, well, four years under President Obama and a couple of years before that under President Bush.

BARNES: That's right. I mean this is a really important part of American national security policy. It's been a very important weapon in the war on terror. It's an open secret, everyone knows about it. Officials will talk privately about it. But unlike military operations, because many of these strikes are CIA strikes, we just don't know very much about how targets are selected, how the campaign is conducted.

Even afterwards we get only a few details, if that.

CONAN: And there are independent organizations that go back and say from what we can figure out, it looks like, yes, this strike got six militants and may have gotten two noncombatants. Nobody knows.

BARNES: That's right, and you know, privately U.S. officials sometimes push back very hard against the outside groups' accounting, saying, you know, there weren't any civilians hurt in this strike. But, you know, it is very hard to tell objectively, you know, what the results are.

I mean, these are - tend to happen in remote places of Yemen, in remote places of Pakistan. It's very hard to get good, strong, independent information. And that's why they're so controversial overseas.

CONAN: And that is the other point that a lot of people make, that they're counterproductive, that in fact when you are killing people who are not combatants, you're creating more terrorists than you're killing.

BARNES: That's right, and you know, within the Obama administration over the last year or so, there's been increasing voices to say we need to move more of these drone strikes from the CIA to the military.

CONAN: Now, just to clarify, as I understand it, inside the borders of Afghanistan, these strikes are conducted, such as they are, by the military. If it's across the border into Pakistan, well, that's the CIA's territory.

BARNES: That's exactly right, and in Yemen it's a dual program. Some strikes are done by the military, some strikes by the CIA.

CONAN: And the military strikes would have been launched from our base in Djibouti, perhaps, and we just found out this week about a secret base in Saudi Arabia that - where the CIA may be operating.

BARNES: That's right, and so we've - that has been a kind of open secret about the Saudi base, but until recently U.S. officials have been pushing back very hard on revealing that, in that any U.S. military presence or U.S. national security presence is controversial within Saudi Arabia.

CONAN: Within Saudi Arabia. And as you look at these questions, there is also the question of precedent. The United States is not the only country that uses drones, and it is the first to use them on this scale.

BARNES: That's right. I mean within the legal community, there's a lot of worry that the U.S., by its actions, is creating rules of the road, and it's creating rules of the road that might not be so restrictive, so that China may start using drone strikes, say, against internal dissidents, say the Uyghurs.

Now, they haven't done that, but they could in the future, and that's why laying out what constrains the use of this power is so important, people say.

CONAN: And what does international law say? The reviews, such as they have been, by the United Nations special rapporteurs and others have been, well, highly critical.

BARNES: They have been very critical, and the U.S. has - that has prompted more disclosure. I mean Brennan has given several speeches; Jay Johnson, the former defense general counsel has given speeches; Eric Holder - trying to say, look, there are constraints to how the U.S. does this. But yet none of those speeches has been completely forthright, none of those speeches have given us a real for example, this is how we weighed the pros and cons, this is how we were sure we weren't going to hit civilian casualties, this is what the check on executive power is.

CONAN: We're talking with Julian Barnes, a Pentagon reporter for the Wall Street Journal. In just a couple of minutes we're also going to be talking with Steve Vladeck, a law professor at American University. We want to hear from you as well. How do you conduct a conflict against an organization that operates in remote areas of failed states? Well, the rules of war are being determined even as we speak.

We're also going to read from some editorials on the subject, and this one is by - excuse me, this one by Ned Resnikoff at MSNBC.com reminds us that we should not focus just on drone strikes. Drones are not the only tool available for carrying out extrajudicial killings, he writes. For example, the al-Majalah strike in Yemen, which Amnesty International claims killed 41 civilians, including 21 children, was conducted with Tomahawk cruise missiles and cluster bombs, not drones.

And as Adam Serwer writes in Mother Jones, the DoJ white paper's legal justifications apply to any method of targeted killing, meaning that government officials could theoretically send assassins to hunt down suspected terrorists.

That's not to say that the drone's capacity for remote targeting does not lead us into unexplored ethical territory. Similarly, he continues, an argument about the ethics of killing American citizens can only be viewed as a distraction. The vast majority of those killed by extrajudicial government policies are Pakistani or Yemeni, not American. The disproportionate attention paid to American deaths makes sense only if killing Americans is particularly immoral or illegal.

What makes the targeted killing program so repellent is not the technology being used or the nationality of the dead; it's the fact that the American executive branch is signing death warrants with impunity, based on an opaque bureaucratic procedure which has little to do with anything we'd recognize as due process. That again from Ned Resnikoff in MSNBC.com.

This is an argument on the other side from the - Saikrishna Prakash in the New York Times Room for Debate: One problem with this view is that American soldiers have targeted Americans before. The best example is the bloodiest war in U.S. history, the Civil War.

Under the North's theory of the conflict, soldiers of the Confederacy were Americans. Nonetheless, thousands of American boys from Dixie were killed by Union forces with no thought that these killings inevitably violated the Fourth or Fifth Amendments. It's a simple point that Americans who join the enemy are not immune from attack merely because they are American.

Another problem with the critics is they envision not just the legalization of warfare but its complete judicialization. I very much doubt we will ever get to the point where judges review targeting decisions. Judges used to deliberation are incapable of second-guessing the real-time and often hasty decisions that military commanders must inevitably make.

Well, we want to hear from you as well, 800-989-8255. Email us, talk@npr.org. Stay with us. We'll be back after a short break. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

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CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. This hour, members of the Senate Intelligence Committee are gathering in Room 216 of the Hart Building on Capitol Hill to question John Brennan, the president's nominee to direct the Central Intelligence Agency. Almost certainly he'll be asked to address U.S. policies on targeting suspects with drone strikes.

Brennan has responded in writing to a set of questions from the Intelligence Committee ahead of the hearing. On the subject of how suspects are selected, he replied it's, quote, a case-by-case basis through a coordinated interagency process and defended drone strikes as a more humane way to conduct war.

Of course humane and war are tough words to reconcile. So what's the best way to fight an organization like al-Qaeda? Our phone number is 800-989-8255. Email talk@npr.org. You can also join the conversation on our website. That's at npr.org. Click on TALK OF THE NATION.

Our guest, Julian Barnes, Pentagon reporter, Wall Street Journal. Also here with us in Studio 3A is Steve Vladeck, a law professor and associate dean for scholarship at American University's Washington College of Law. Thanks very much for being with us.

STEVE VLADECK: Thanks for having me, Neal.

CONAN: And what authority do we learn from this memo? Where does the president get the power to conduct these strikes?

VLADECK: Well, the memo sets out arguments that, as Julian suggested, we've heard before from Attorney General Holder, from John Brennan himself. And the basic argument is that when Congress authorized the use of military force shortly after September 11, Congress authorized the use of military force against groups like al-Qaeda, al-Qaeda and those other organizations responsible for 9/11, affiliates of those organizations. And so in the process...

CONAN: Wherever they may be.

VLADECK: Well, there's - in the AUMF, there's no geographic constraint whatsoever. So of course one of the questions is does it apply here in the United States. And, you know, the government's position has been that the AUMF triggered the international laws of war, and it triggered the government's ability to use the laws of war against those whom we are fighting.

CONAN: AUMF, Authorization for the Use of Military Force.

VLADECK: That's right, the September 2001 statute. And so the government's position is that the AUMF, the statute from 2001, authorizes the government to use military force against anyone who is a member of al-Qaeda or who is substantially supporting al-Qaeda wherever they are found.

That was the theory under which we detained noncitizens at Guantanamo, and it's the theory behind the drone strikes, as well.

CONAN: And how does the rationale change when there are American citizens involved?

VLADECK: Well, that's the really hard questions. So we'd only had two cases where U.S. citizens were detained since September 11, Yaser Hamdi and Jose Padilla. And both of those cases basically went away. The real change in the rationale is the relevance of the Due Process Clause. The Due Process Clause of the Fifth Amendment guarantees every American the right not to be deprived ofr life, liberty or property without due process.

So as Julian already alluded to, the million-dollar question is: What process is due to an American citizen who takes up arms with al-Qaeda against the United States? The government doesn't say that it's nothing; the government just says it's process wholly within the executive branch without further judicial or legislative scrutiny.

CONAN: Interagency process, that presumably means you've got people there from different departments but all from the executive departments, they all work for the same guy, the president.

VLADECK: That's right, Neal, and you said presumably, right. We actually don't know. So I think part of what's frustrating about the white paper that came out this week is that it really contains virtually no description of how individuals are selected for these operations, of whether anyone in the room is arguing for alternatives, of just how thoroughly we are considering whether...

CONAN: Is anybody effectively assigned as the defense attorney?

VLADECK: That's right, and whether - and also, I mean, another key part here is the memo talks about the inability to capture or otherwise incapacitate this individual through other means. But who's actually making that case? Who's actually saying yes, we don't actually have the capability of capturing this guy, of arresting him, of having the local authorities in the country where he's found take care of it.

That's the real question, and there's nothing, really, in the white paper that illuminates that.

CONAN: Let's see if we can get some callers in on the conversation. We'll start with L.T.(ph), L.T. with us from Zachary in Louisiana.

L.T.: Afternoon, how are you all?

CONAN: Good, thanks.

L.T.: Listen, my first reaction was does this actually allow for a foreign country to assassinate its own citizens on U.S. soil if those citizens are found to be, by their own government, enemies of the state? I mean, it really just - I mean, I understand the due process argument and concern, but, I mean, the international law question is really kind of more intriguing for me that we can have, we can have foreign assassins on our soil, apparently, and U.S. law would recognize their right to do that?

CONAN: Well, I'm - let me ask the lawyer here. We've had instances where agents of the old Libyan government were hunting down stray dogs, as they would have called them, certainly Cuba might be interested in some anti-Cuban activists, Croatia, long history.

VLADECK: So I think there are two important constraints on the ability of another country, China, whomever, to engage in such an operation. The first is unlike what's true, we think, in the case of Awlaki and these other targets, we actually are in a position to arrest people inside the United States. And so if a foreign government files a proper extradition request with the United States, we're going to actually support that request. We are going to assist them in incapacitating this person through less restrictive means.

CONAN: And give them due process along the way.

VLADECK: And give them due process. I mean, we can quibble about how much due process you get in an extradition hearing, but it's certainly more than we hear in the targeted killing context.

Second, and I think this is a really important point, it's not just the U.S. position that we're in a non-international armed conflict with al-Qaeda. It's actually - you know, there's fairly deep consensus that that's true at least in some spots of the world, that we are in this non-international armed conflict.

It's not the case that China, for example, is in a non-international armed conflict with the Uyghurs as Julian alluded to before. You know, and so I think you need both of those things to be true. You need there to be an actual armed conflict between the state and the dissident group, and you also need it to be the case that the country in which the person is found is not in a position to arrest that individual.

And I think that's - those are two important constraints. They may not be sufficient.

CONAN: Julian Barnes?

BARNES: The other thing that is important for - to note, an administration official would say the other thing to remember is that the drone strikes are, in the case of Yemen and in Pakistan, there is at least nominal consent by the government of those countries for the U.S. to do those operations.

CONAN: Well, that's - nominal consent, Pakistan has said this is a violation of our sovereignty, you should stop it, and wink, wink, nod, nod.

BARNES: Right, exactly, and so the U.S. is relying on that wink and that nod. There's, you know, the U.S. notifies, the CIA sends a fax to the ISI when - before a strike.

CONAN: Interservices Intelligence Agency, yes.

VLADECK: But, you know, Julian mentioned before the underlying memo by the Office of Legal Counsel that is still not public, that is apparently finally being disclosed to members of the intelligence committees. There's a fairly broadly accepted theory that the reason why that memo has not been published is not because of any of the legal analysis but is because it has details about exactly what we have agreed to with Yemen and exactly what the Yemeni government will and will not support unofficially because it would be very problematic if all of a sudden officially they were accepting.

CONAN: If it was WikiLeaked, yeah.

VLADECK: Exactly.

CONAN: Thanks very much for the call, L.T. I'm not sure that's an answer, but thank you. This is an excerpt from an editorial by Mary Ellen O'Connell that was published in the New York Times today. She's a professor of law at the University of Notre Dame.

The paper's sweeping claims of executive power are audacious, she concludes. And then at the end, she writes: Putting aside the question whether targeted killings are even effective, the law must take precedence. Outside of armed conflict zones, the killing of innocent bystanders cannot be tolerated. The Justice Department has concocted an elastic definition of necessity, attempting to justify force in the absence of an immediate lethal threat, without citing any treaty or decision by an international court.

Secret law, she writes, is an oxymoron. The rule of law is the basis of our democracy, the foundation of international relations. Facts like operational details may properly be kept confidential but not the law itself.

And, well, some people who say, Steve Vladeck, that she's got a point.

VLADECK: I think she definitely has a point. But I think the tricky question is just how far can the government be expected to go in revealing the details of the analysis. It's one thing for the government to say that in these general circumstances and under these general conditions we believe we have the power to launch a drone strike even against a U.S. citizen. It's something else entirely to say in the case of Awlaki, for example, here were the 13 facts, you know, all of which are classified, here were the five conversations we had with Yemeni security officials, all of which are classified.

VLADECK: And so I think that's the trap the government has been placed in, which is on the one hand it really wants to have a public conversation about the legal authority because it believes it has the authority. On the other hand, it really feels like it cannot disclose any of the operational details.

VLADECK: And so what we're left with, Neal, is we're left with a white paper that is so vague that if anything it only fuels conspiracy theories that this is actually not a nuanced, very carefully applied set of arguments.

CONAN: Here's an email from Jerry(ph): Even if the senators on the Defense - he means Intelligence - Committee see details, how are citizens to know whether we are comfortable with the decisions being made? Without knowing, how can we do a good job holding leaders accountable at election time? Are we expected to vote for senators, congresspeople and the president without being able to know what they are really approving?

It's all very undemocratic to just say trust them. The reason we vote is because we want to have a say in policy-making, but our officials will not tell us what defense policy really is in many cases. And, Julian Barnes, one of the odd parts of this is that the president is - among his defenders, most Republicans, who are often amongst his critics on this. And Democrats have been unwilling to be too critical of their president.

BARNES: Right. And it's only - you know, it's the threat of a filibuster from a Democrat that led to the shift on the Justice Department memo to allow at least some senators to view that. And this administration has been criticized from human rights groups, from some in the legal community. But they haven't had a broad, political attack on the drone program because Republicans support it. And Democrats who are skeptical have not wanted to undermine the president.

Now, that so, the push by outside groups has led to some - to these speeches, and to some more material being released. And we'll have to see if more comes out in the weeks and months to come.

CONAN: Let's go to Matthew, Matthew with us from Murray, Kentucky.

MATTHEW: Yes. Thank you for taking my call.

CONAN: Go ahead, please.

MATTHEW: One of the things that has sort of bothered me about the program is that the lack of human asset on the ground really, I think, decreases the ability of folks to respond in real-time to the presence of civilians. I understand that these operations take place in areas that are outside of the reach, very frequently, of governmental entities. But at the same time, having someone on the ground might improve our ability to limit or remove a possibility of civilian casualty...

CONAN: To be able to put eyes on a building to say, yes, we know that three women and five children went into that building yesterday, and they have not come out, that sort of thing. But, Julian Barnes, these opportunities are often fleeting.

BARNES: Right. And these are places that it's politically not possible. It may not be safe enough to put CIA agents or the military on the ground. And so, you know, you mentioned earlier some of these tomahawk or cruise missile strikes that have taken out large numbers of people. You know, supporters of the drone strikes will say, like, because these are armed platforms that have both cameras and armaments on them, you know, we are able to see what we're striking in real-time. And that has reduced civilian casualties. Critics say just because you can listen and see doesn't mean you really know who's on the ground.

CONAN: Tomahawks typically have a 2,000-pound warhead, also. Hellfire missiles are much smaller, and 500-pound bombs are about as big as those drones can carry.

BARNES: That's right, and they can put much smaller bombs on them, as well.

CONAN: All right. Matthew, though, thank you very much for the call. Appreciate it.

MATTHEW: Thank you.

CONAN: We're talking with Julian Barnes, the Pentagon reporter for The Wall Street Journal. Also with us, Steve Vladeck, law professor at American University's Washington College of Law. Drones and the Brennan confirmation hearings. You're listening to TALK OF THE NATION, from NPR News.

And, Julian, back to these targeted killings in just a moment, but there will be other subjects to come up at Mr. Brennan's confirmation hearings, among them his - he was a longtime Central Intelligence Agency officer, and in the Bush administration, participated in some meetings where - again, we're back to euphemisms - enhanced interrogation, i.e. waterboarding, or some would have it torture, was condoned.

BARNES: That's right. That's what derailed John Brennan as the nominee to head the CIA during Mr. Obama's first term, questions about whether he didn't speak up against this enough. He says that he personally opposed it, and wasn't directly involved. But senators have said that they want to get more answers from him on exactly what his involvement was during the Bush administration for the approval and use of these, as you said, waterboarding and other enhanced interrogation techniques.

CONAN: And there will be some Republicans certainly who haven't gotten some answers from Secretary Panetta today on Benghazi, will be asking Mr. Brennan what the White House knew about what was going on there.

BARNES: That's right. Benghazi has not gone away. We saw some pretty serious questioning of General Martin Dempsey and Mr. Panetta this morning. And John Brennan was as - was at least involved on the edges of this, and so we're going to see some questions about that. Now, we don't expect him to illuminate a lot about Benghazi that we haven't already heard from Morrell, the acting director of the CIA, or Hillary Clinton. But it's likely to come up.

CONAN: All right. Let's see if we can go to Nikki, and Nikki on the line with us from Nashville.

NIKKI: Hi. How are you guys?

CONAN: Good. Thanks.

NIKKI: I know that drones have held a lot of controversy over the past couple of years, about taking the human element out of war. It reduces casualties, some people say. But, at the same time, it puts less people on the ground to work, you know, work with local communities, tribes that may not have access to, you know, big cities and stuff, where maybe the Taliban or al-Qaida or any places like that they're hiding, you know. It's difficult to fight a transnational organization simply because there's so many people.

And I would like to see the international community focus more on pumping money into, you know, weaponry and the military and more on diplomacy and economic sanctions in those areas. I think that's one of the best ways we can get communities on our side to not endorse the Taliban or al-Qaida, or to not turn to extreme measures to gain their livelihood back. Because a lot of these people are very deprived and...

CONAN: And I don't mean to cut you off, Nikki, but we're running out of time. Steve Vladeck, I think probably a good case could be made that what Nikki's definition would fit Yemen, a place that is impoverished, a huge population, youth population, and where al-Qaida is active.

VLADECK: And I think that's a very question for this administration - and, really, for the administration that comes after it - about just what position we're going to take, vis-a-vis, Yemen, how much resources we're going to invest in Yemen from an infrastructure perspective, from a support perspective. You know, part of the problem that led to the Awlaki attack is that we really don't have a sufficiently strong relationship with the Yemeni government, where we can say we have this guy. We need you to help us get him.

CONAN: Nor does the Yemeni government have a sufficiently strong infrastructure to control much outside of the capital city.

VLADECK: Well, that's exactly the problem, is that in Sana'a, there's actually a decent amount of control, but not in the north and not where - not in the parts of Yemen where these strikes were taking place. You know, I mean, not to sort of tie two things together, but, Neal, this is also a part of why it's been so hard for the administration to close Guantanamo. There are some 35 Yemeni detainees there who have been cleared for release and who can't be sent back because we just don't have a full handle on and don't trust the situation on the ground there. So I think that's going to be a huge foreign policy priority and problem for this administration, and for several to come.

CONAN: Nikki, thanks very much. We'll let a couple of emailers get the last word. From Richard: I would argue that a U.S. citizen who joins with an organization against the U.S. has effectively renounced their citizenship, no longer protected by the Constitution. Who gets to decide that?

And Roger emails: I'm an anti-war activist back in the '60s, but I do not object to a police force using deadly fire if necessary against armed criminals with intent to kill.

So, anyway, gentlemen, thank you very much for your time today. We appreciate it. Julian Barnes of The Wall Street Journal, and Steve Vladeck of the American University's Washington College of Law. Penguins coming up next. It's the TALK OF THE NATION. Transcript provided by NPR, Copyright NPR.