What's Legal Vs. What's Wise In Drone Attacks

Weekend Edition Saturday host Scott Simon talks with Benjamin Wittes of the Brookings Institution about a recently released Obama administration memo that gave the legal justification for targeting U.S. citizens with drones.

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SCOTT SIMON, HOST:

This is WEEKEND EDITION from NPR News. I'm Scott Simon. This week, John Brennan, President Obama's choice for director of the CIA, faced questions of the Senate Intelligence Committee as part of his confirmation hearings. Mr. Brennan spent the last four years as Homeland Security advisor and is one of the chief architects of the U.S. war on terror. He faced questions from the committee on the most controversial parts of that policy: the operations of secret prisons, enhanced interrogation techniques and the use of drones to kill.

JOHN BRENNAN: We only take such actions as a last resort to save lives when there's no other alternative to taking an action that's going to mitigate that threat.

SIMON: The hearing came three days after the leak of the so-called white paper, a Justice Department document which explained the legal justification for targeting U.S. citizens who are in al-Qaida, such as Anwar al-Awlaki, the American-born cleric who was killed two years ago by a drone strike in Yemen. Benjamin Wittes is a senior fellow at the Brookings Institution. He studies the intersection of the law and the rules of war. He joined us from a studio at Brookings. Thanks for being with us.

BENJAMIN WITTES: Thanks for having me.

SIMON: As you read this memo, what's in it, what's missing?

WITTES: There's not actually that much new in this white paper over and above what Eric Holder has already said in a public speech. Both take the position that the targeted killing of a U.S. national who is a senior al-Qaida operative planning attacks against the U.S., whose capture is not feasible, is lawful when the attack and the danger is imminent. I'm personally not at all surprised by the administration taking this position, but I seem to be in the minority about that.

SIMON: Well, tell us what the argument on the other side is that you've tried to meet.

WITTES: Well, so the argument on the other side is that this is an extrajudicial killing, that it's an assassination. And so there is something a little bit anomalous about the idea that if you want to wiretap Anwar al-Awlaki, you need to go to court, but if you want to kill him with a drone, the administration asserts that you don't. And, you know, there is something, you know, sort of peculiar about that disparity.

SIMON: I noticed Richard Haass of the Council on Foreign Relations has been skeptical of the term "imminent." I wonder what you think about that, because he made the point that by that definition, that covers a whole lot of people, perhaps hundreds of thousands.

WITTES: Well, I think it doesn't cover hundreds of thousands of people. I would disagree with him about that. But, look, the administration's definition of imminence in this white paper and in Holder's speech is a little bit more relaxed in temporal terms. I mean, they're not saying that Anwar al-Awlaki has to be about to kill lots of Americans. They're saying you have to have a certain level of confidence that he is sort of continually involved in terrorist planning in a fashion that, left uninterrupted, will at some point result in that. And that's a more relaxed conception of imminence that does I don't think implicate hundreds of thousands of people but that does create a broader targeting authority than if you simply said, you know, everybody has to be, you know, about to, on the point of, you know, doing something horrible before you can preempt that with lethal force.

SIMON: We're concentrating this discussion on what might be legal. Is there a separate question when it comes to drone attacks to what might be wise?

WITTES: Absolutely. I mean, look, to say something is legal is not high praise. It merely means that it's not - does not violate the, you know, irreducible minimum ground rules of life of our society. And, you know, frankly, whether as a normative matter, you want to be a society that targets its own citizens is a totally legitimate moral and ethical question quite apart from its legalities.

SIMON: Do you see some kind of slippery slope here?

WITTES: I think the administration has been, you know, extraordinarily careful to put notches on the slippery slope and to try to formulate legal positions that allow it to brace itself on this very terrifying path that the United States finds itself on after 9/11. And, yes, it's a terrifying path. I've sometimes described it in the past as, you know, a slope with two bottoms, right? One is the bottom of a government that's way too empowered to do terrible things to its nationals and to the nationals of other countries.

But there's a slope on the other side of the same hill, right, which is - down which is a government that's powerless to confront very real threats to the safety and existence of its citizens. And so, I actually think of us as on two slippery slopes. And the goal is to notch both of them such that you don't slide down either.

SIMON: Benjamin Wittes is senior fellow at the Brookings Institution, where he co-directs the Harvard Law School-Brookings Project on Law and Security. And he also writes for the blog Lawfare. Mr. Wittes, thanks for being with us.

WITTES: Thanks for having me.

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