How The U.S. Approaches Targeted Killings

Although assassination is illegal under international law, targeted and extrajudicial killing is not.

The U.S. has a history of using extrajudicial killing as a tool of state policy — from Castro, to Osama Bin Laden, to drone strikes in Pakistan.

Guests:

Robert Baer, former Middle East CIA field officer and intelligence columnist for Time.com

Roger Cressey, senior fellow at the Center for Law and Security at NYU

Amos Guiora, law professor at the University of Utah

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NEAL CONAN, host:

This is TALK OF THE NATION. Im Neal Conan in Washington.

Multiple assassins, forged passports, some with fake beards, and a top Hamas official found dead in a luxury hotel room, and while that sounds like a scene from a movie, it describes the very real death of a founder of Hamas last week in Dubai.

A senior official there said he's 99 percent certain that the attack was carried out by the Mossad, Israel's spy service, but Israel refuses to comment.

Semantics are important here. Assassination is illegal under international law. Targeted and extrajudicial killings are, well, a gray area. We're going to talk about the distinction and about U.S. policy from Fidel Castro to Abu Musab al-Zarqawi to Osama bin Laden, and some argue that missiles fired by CIA drones over Pakistan are little different than a poison-tipped umbrella on London's Waterloo Bridge. Among our guests, Amos Guiora, who provided legal advice to the Israeli defense forces on targeted killings in Gaza.

Later in the program, the next in our series on Oscar-nominated documentaries. The director of "The Cove" will join us. But first, assassinations. If you'd like to join the conversation, give us a call, 800-989-8255. Email us, talk@npr.org. And you can join the conversation on our Web site. Thats at npr.org. Just click on TALK OF THE NATION.

Robert Baer is an intelligence columnist for Time.com, a former CIA field officer, and he joins us today from a studio at the University of California Irvine. Nice to have you back on the program.

Mr.�ROBERT BAER (Time.com): It's great to be back.

CONAN: And tell us a little bit about what happened in Dubai. Did it look like a well-executed assassination to you?

Mr.�BAER: Well, it was well-executed in the sense that you need this many people to do a proper assassination. You know, it's just like doing a break-in. You need to cover the street. You need to cover the lobby. You need to know where the maids are. You need backup. You need the muscle and the rest of it.

So when people say, oh, this was a blunder, why didn't they just do it one person with a silenced weapon, it's just not the way these things are done.

The blunder was that if the Israelis indeed did this, they didn't take into account that there are CC-TV cameras, closed-circuit cameras, all over Dubai, and in addition to that, the authorities there have access to some of the best security consulting firms in the world, and what they were able to do was take the telephones, the CC-TV footage and put the assassins' time and place, tie them all together in a neat bow.

And this came, I'm sure, as a surprise to the Israelis. I mean, you look at the pictures and how nonchalant they are walking into the hotel, smiling at the cameras, coming in and out of a room with a disguise. They just assumed that the Emiratees would never be able to put this together, and that was the mistake, not the number of people.

CONAN: Yet they were all outside of the country again by the time the officials in Dubai did put this together.

Mr.�BAER: Well, yeah, it's true. I mean, no one's going to go to jail, and it's unlikely the Dubai authorities are going to identify the agents who did this, but on the other hand, it's been a huge embarrassment to Israel, and I'm not sure it's worth the candle.

I mean, this guy, this Hamas militant, was an arms dealer, and he'd killed two Israeli soldiers, but on the other hand, the embarrassment it's caused Israel up until now is extreme. I mean, and you have to keep in mind that the Israelis have been pushing aggressively to deal with the Arab Gulf states, you know, among other things seeking diplomatic recognition. It set things way back.

CONAN: There were also Israeli ambassadors in Ireland and Britain, were called in on the carpet, apparently to explain the use of forged passports from those countries, which the officials there were not amused.

Nevertheless, let us talk about the United States and its role in assassinations in the past years. You've told us that at one time you were assigned, when you were in the CIA, to assassinate Saddam Hussein.

Mr.�BAER: I was, and this was in the middle '90s. I was in northern Iraq, and we had a policy of removing Saddam Hussein from power, and we were authorized lethal force. The word assassination was never used. There's a law against assassination, but using force to remove a foreign leader is authorized by Congress and the president, and it was in this case.

I headed this team there, and some Iraqi generals wanted to remove Saddam, corner him near Tikrit in his palace there, and either he would resign or they would kill him. Now, you can call it assassination or anything you want. I mean, to the average person it looks like an assassination. We'll just leave it at that.

I came back and was investigated, I think the first American official, along with the rest of my team, for the attempted assassination of Saddam Hussein.

We were ultimately exonerated and received letters from the Department of Justice. It was called a declination, and it passed. But it was still, it told me the story just how sensitive that word is in Washington, assassination, and how unclear it is to the Department of Justice and the FBI exactly what it means.

CONAN: Well, since that law was passed, the United States, well, not just your effort, but in the opening of the invasion of Iraq, there was an effort to bomb a bunker at which Saddam Hussein was thought to be.

Mr.�BAER: There was at least six instances of firing missiles. This was the military, which brings up an interesting legal point. The military is allowed to assassinate under Title 10. It's called battlefield preparation, and you can kill leaders, you can kill insurgent leaders. You can even kill soldiers by assassination in order to fight a war. The CIA does not have that same authority.

CONAN: Again, the bombing raid on Libya in the Reagan administration, his tent was hit as a command and control center.

Mr.�BAER: Absolutely. I mean, it's not unprecedented. I mean, every European country at one time or another has conducted campaigns of assassination in history. Nothing's new about this.

CONAN: Well, let's get another voice on the conversation. Roger Cressey is with us. He's a former counterterrorism official in the Bush and Clinton White Houses, now a senior fellow at the Center for Law and Security at NYU, with us from his office in Arlington. Nice of you to be with us today.

Mr. ROGER CRESSEY (New York University): It's good to be here, thank you.

CONAN: And we're using the term assassination I guess broadly, as opposed to extrajudicial killings, but should this be a tool of state?

Mr. CRESSEY: Well, I don't like the term because I think it can be misleading, particularly in what we're trying to in recent years. I think you should not have political assassination as a tool, and it's banned under Executive Order 12333. The issue is if you're dealing if the United States government makes a decision to go to war, to attack a transnational group, one objective of that decision is to eliminate the leadership.

So we're going to do that through two means. We're either going to do it through traditional military means, like Bob said, through Title 10, or we're going to do it through covert activity. I mean, we're trying to actively hunt down and kill Osama bin Laden. We're not trying to assassinate him. We're trying to kill the senior leadership of al-Qaida hiding in Waziristan right now.

That is not assassination in the way that we have discussed assassination in the past. This is not the exploding cigar with Fidel, because we are at war with this entity known as al-Qaida. We were never at war with Cuba.

So while I am sensitive to the concern that people have about political assassination, I think we've got to put it in the proper context with what we're trying to prosecute these days.

CONAN: Well, nevertheless, the reason there's a law against this and an executive order against it is because if we're assassinating other people, it invites them to assassinate us.

Mr. CRESSEY: Well, yeah, of course, but under the U.N. charter, under Article 51 of self-defense, we can attack another nation in the spirit of self-defense, and under international law that is justified as well.

So the difference between launching a 2,000-pound laser-guided bomb from an F-16 to destroy Saddam Hussein and trying to kill bin Laden with a Predator Hellfire Missile, in the context of war that is completely different than a political assassination, and I think that is where we have gone off-track a little bit.

CONAN: All right. Let's see if we can get some listeners in on the conversation. We're talking with Bob Baer, a former Middle East CIA field officer, now Time.com's intelligence columnist; and Roger Cressey, a former counterterrorism official in the Bush and Clinton White Houses. 800-989-8255. Email us, talk@npr.org.

There's the case, as you're talking about Osama bin Laden, Roger Cressey, there was the case of Mr. Zarqawi, the head of al-Qaida in Iraq, and he was tracked to a home, and it was hit by that, well, that 500-pound bomb.

Mr. CRESSEY: Right, and again, I think it was the right thing to do militarily. The question you have to ask is, well, is that the end of the story? And that is the never the end of the story. Even in the case of, if you destroy bin Laden and his senior leadership, you're still dealing with the residual entity. You're still dealing with a movement.

In the case of al-Qaida in Iraq, even after Zarqawi was killed, you still needed to do a series of policy steps in order to eliminate AQ in Iraq. Part of that was the surge, part of that was a number of other things that we've talked about in previous appearances, but you have to go, in a military sense, you have to go after the leadership as well as any type of standing army when you go to war. The leadership is a center of gravity.

What I think a lot of people assume is that once you eliminate the leadership, that's the end of the story, and in rare cases that's the case.

CONAN: Let's talk with John. John's calling us from Stanford in North Carolina.

JOHN (Caller): Hi, I've got a quick question. Reference using we do a lot of the targeted drone strikes against foreign nationals involved with al-Qaida and such. Is it what about for American citizens involved in those organizations, such as the guy working with an al-Qaida-affiliated groups in Somalia, I believe, he was featured in the New York Times, or guys like Adam Gahan(ph), who does a lot of Taliban propaganda and al-Qaida propaganda in Pakistan?

CONAN: Or Mr. Awlaki in Yemen.

JOHN: Correct.

CONAN: He was born in this country, he's an American citizen. If you're an American citizen, would it make a difference?

Mr. CRESSEY: Well, so if an American citizen is formally working with a terrorist organization and in an operational sense for me that's an important distinction then as far as I'm concerned, they're fair game. So if we are looking to eliminate the senior leadership of a terrorist organization, and an American happens to be part of that senior leadership, then they are in a situation where yeah, they could be taken out.

CONAN: Bob Baer, I wonder what you think about that.

Mr. BAER: Well, I think we're opening just a whole can of worms, you know. To address what you said before, I mean, what would prevent the Russians from saying, all right, well, we have our enemy leadership, there's a lot of Chechens living in New York. The Americans are doing nothing about it. They are a threat to our sovereignty, to the nation. Let's take them out. The same way this Iranian that's been arrest, the Baluch, (unintelligible), there's a family in New Jersey. What would happen if the Iranians stepped in and said these people are terrorists and they're being protected by the United States?

And that's my problem with the whole idea of targeted killings, whether it's by a 500-pound bomb or an assassin's bullet.

CONAN: John, thanks very much for the phone call.

JOHN: Thank you.

CONAN: And Roger Cressey, thank you for your time today. We appreciate it, as always.

Mr. CRESSEY: It's our pleasure, thank you.

CONAN: Roger Cressey, a former counterterrorism official in the Bush and Clinton White Houses, now a senior fellow at the Center for Law and Security at NYU, with us from his office in Arlington.

Targeted killing, extrajudicial killing, assassination, whatever you call it. Many countries use it as a tool to protect their security and their interests. We'll continue on with Robert Baer. Up next, we'll talk with a former legal advisor to the Israeli defense forces who was asked about his advice about who was targeted for targeted killings in the Gaza Strip. Stay with us. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. We're talking about assassination as a tool of state policy. A top U.S. intelligence official recently told Congress that members of terrorist organizations abroad are subject to extrajudicial killings, including, he said, U.S. citizens involved in terrorist activities who are judged to pose a continuing and imminent threat to the country.

This morning, Dennis Kucinich, a Congressman from Ohio, a Democrat, proposed an amendment to ensure congressional oversight of any targeting program. His office tells us the amendment is just a first step and would require the president to report to the intelligence communities the identities of any U.S. citizens added to target lists. The Rules Committee is expected to take up that proposal this afternoon.

Our guest is Robert Baer, a former Middle East CIA field officer, author of, most recently, "The Devil We Know: Dealing With The New Iranian Superpower." If you'd like to join the conversation, our phone number is 800-989-8255. Email talk@npr.org. You can also join the conversation at our Web site. Thats at npr.org. Click on TALK OF THE NATION.

Amos Guiora is a professor of law at the University of Utah, and former legal advisor to the Israeli defense forces in the Gaza Strip, where he provided legal advice on targeted killings. He joins us today from a studio at KUER, a member station in Salt Lake City. Nice to have you with us today.

Mr. AMOS GUIORA (Professor of Law, University of Utah): Thank you so much for having me.

CONAN: And can you give us an example of an instance where you were asked for such advice?

Mr. GUIORA: Sure. The question posed to me was whether or not a particular individual, against whom there was relevant intelligence information indicating that he posed a future and immediate threat to state security - and the question was whether or not, based on a criteria-based checklist, I would grant the commander the okay to conduct the targeted killing.

But for me, it's particularly important in the discussion that you and I are going to have and listening carefully to what Bob has been saying, is this is, I believe, must be based on criteria. We must ask ourselves whether the intelligence information is valid, viable, reliable and corroborated; whether we've asked ourselves the critical international law questions about military necessity, proportionality, alternatives and collateral damage.

We also must make sure that the force that's in play is properly trained for the particular kind of operational hit that it's going to be required to conduct. And then we must ask ourselves: Are we absolutely and totally convinced that this particular individual is that individual.

CONAN: And how long were you typically given to go down that checklist?

Mr. GUIORA: In this one particular incident which I'm referring to here, the window, if you will, the window of opportunity was short. There's an extraordinary tension that goes into these decisions, but what for me was critical, and then I said, and the reason I said no is that I was not convinced that the intelligence information met my four-part test, and I was not convinced that this particular identified target was indeed that person.

And again, and I emphasize, and I deliberate repeat myself, Neal; the idea of having clear criteria and clear guidelines is essential if we're going to implement what I refer to as person-specific counterterrorism intended to minimize collateral damage and to ensure that the target is, indeed, that target.

CONAN: Bob Baer, to your knowledge, is there such criteria for the United States?

Mr. BAER: No, that's the problem. Israel is quite aware of who it needs to deal with. It knows, it has very good intelligence on the Palestinians. It has very good intelligence, for instance, on Hezbollah, and I couldn't agree more that that criteria is held up before they ever go in to get anybody ever.

Unfortunately, the United States does nowhere near as good intelligence in the tribal areas of Pakistan, or even Iraq at this point. So what we're doing is when we go for an assassination is we're killing a lot of innocent people, which rarely happens in Israel now.

CONAN: That would be the collateral damage category, right, Amos Guiora?

Mr. GUIORA: That's exactly right. International law requires a nation state to minimize collateral damage. It does not require the nation state to have no collateral damage.

In some ways, anytime you're engaged in killing somebody when there are civilians around, or potentially civilians around, there will potentially be collateral damage.

But what I find, if we can digress for half a second, what I find disconcerting or a source of concern with respect to the drone program is the number of innocent civilians who are being killed every time there's a drone. And I think that's the antithesis of what I refer to as the person-specific counterterrorism.

A couple years ago, I co-wrote an op-ed on this, in which I laughingly refer to as - guess who's coming to dinner. Because if we're not sure who's at the dinner party, and if we're not sure who else is there other than the intended target, it's inevitable that there will be significant collateral damage, which not only violates international law, but it also, in my opinion, leads to ineffective operational counterterrorism because you're doing nothing more than creating the next generation of suicide bombers, the next generation of those who oppose you.

And Bob's absolutely right. In the Israeli paradigm, the intelligence gathering and intelligence analysis with respect to both the Palestinians and Hezbollah is extraordinary. And that's why in the context of targeted killings, yes, sometimes tragically there is collateral damage, but in the overwhelming majority of targeted killing, the collateral damage is, indeed, minimized because there's extraordinary operational real-time, online intelligence information which, without it, I'm not really convinced you can have lawful, effective operational counterterrorism.

CONAN: We've heard of instances in the Israeli context where a car was hit, four people in the car. Would you need to know the identities of all four people in that car before you would authorize it?

Mr. GUIORA: I think it's important to make every effort to know exactly who's in the immediate milieu of the individual who is going to be targeted, and you're right. In the car context, there clearly have been people who have been in the car.

Am I always convinced that those who are in the car are absolutely innocent? It's a great question, which again, takes us full circle back to the intelligence information. I would make every effort in those contexts, in those paradigms, to have as much information as possible with respect to who else is in the immediate environment.

And there's a distinction here, Bob, which needs Neal, which needs to be made between the immediate environment and then the larger environment, I mean the guys in the car, two or three other people. Who else is in the car? But if the guy is in his house, for example, who is in the house? But if he's in the street, you're certainly not going to know everybody who's in the street at that particular moment, which then raises the question - I think the obligation - to conduct the targeted killing in such a manner that the person is going to be as isolated as possible, and that in many ways is the implementation and articulation of person-specific counterterrorism.

CONAN: Let's get another caller on the line. This Matthew(ph), Matthew with us from Jacksonville.

MATTHEW (Caller): Yes, hi. I was just curious what the difference really is between dropping a bomb on a target or sending in an elite team with just a few people to take out a specific target. It seems like with a bomb, there's a much larger margin for error of unintended casualties, and I was just curious. It just seems like comparing apples and apples, and I'll take the comments off the air.

CONAN: All right, Matthew, thank you. Bob Baer, it's the United States that often drops bombs, though Israel has done so, as well.

Mr. BAER: Well, the Israelis do it normally in the context of a war, they drop bombs, but if, you know, given their preferences, if they have a militant in a camp in the West bank who's shed Israeli blood, they will risk a commando team - sending them into those camps.

I've been into a couple of camps around Hebron where it's amazing. You just lift your hands up, and you can touch the walls. They're narrow alleys teeming with people, but rather than dropping a bomb on the camp, creating more martyrs, what they do is they will send a team in and risk it.

CONAN: In recent weeks, the United States sent a team by helicopter into Somalia to get a man identified as an al-Qaida recruiter.

Mr. BAER: Absolutely. I mean, it's everybody would prefer to do that, and again, we go back to Amos' comments. The problems is in Fatah, the tribal areas of Pakistan, you are creating uncountable enemies by dropping bombs on them, and it will just prolong the war in Afghanistan and threaten to spread to the rest of Pakistan if we keep on doing this.

I mean, the Pashtun what's happened is we're almost at war with the Pashtun that span the border between Afghanistan and Pakistan. And using these strikes as we have the last couple weeks in Afghanistan, didn't work for the Russians, and it's not going to work for us.

Mr. GUIORA: You know, Neal, if I can jump in on this, the idea of effectiveness of Matthew's question, because that in many ways the larger-part question here.

If a targeted killing kills only the targeted individual, in many ways his larger community well knows that: A, he is a terrorist; and B, many of those in the larger community are well aware of the fact that his actions are harmful to the larger community.

And if I can conduct a targeted killing in such a way that only that one person is killed, and thereby absolutely minimizing collateral damage, the rest of the his community well understands: A, why the targeted killing was done and in many ways is appreciative of the fact that it was done the way it was done.

On the other hand, if I drop a 500-pound bomb, and I kill X number of totally innocent people, not only is that hit ineffective, it's ineffective both tactically, killing the wrong people, but it also has long-term strategic importance in terms of how the other side views moral operational counterterrorism.

CONAN: One should point out that despite what you're talking about is precision, Israel has no shortage of enemies.

Prof. GUIORA: That's absolutely correct. And that said, you know, I suggest, Neal, that we look at life as divided into three lines. One line stands up at the recruiting poster of Bin Laden and we're not going to convince them of anything. The other line are those who believe that the way to live the human existence is to put food on the table and educate their children. So the most important line in the world is the middle line, the swayables.

When we conduct effective person-specific counterterrorism, they understand why we do that. On the other hand, when there are innocents who are killed, we do nothing more but push them into the Bin Laden camp, which has long-term, again, strategic negative ramifications.

CONAN: Here's an email from James in Tucson. I keep it hearing it's illegal for the feds to assassinate foreign leaders. It's my understanding the CIA has been involved in that kind of activity. Has there ever been a prosecution for these kind of assassinations? How would they go about prosecuting something like this? Could CIA officers be prosecuted? Bob Baer?

Mr. BAER: Oh, absolutely, they can prosecute. And they would prosecute you if there were evidence that a CIA officer conducted an illegal assassination. He'd be brought up for murder charges.

Now, what I don't understand is the law that applies with the Hellfire missiles and the Predators being fired. To my definition, it's an assassination, but obviously Department of Justice is looking at it differently. But I do not think - I'm quite convinced that the CIA today is not conducting targeted killings outside or anything to do with them outside the war zones; that means Iraq, Afghanistan and Pakistan.

CONAN: That the CIA is not involved in extrajudicial killings outside those areas, and you're not talking about Yemen? You're not talking...

Mr. BAER: Well, Yemen is that one exception. They fired a Hellfire early on and they killed a dozen - a half dozen people in a car. But that's fairly it for the exception. But the kind of killing that occurred in Dubai, the CIA does not engage in that.

CONAN: To your knowledge or to your belief, are other countries involved in that?

Mr. BAER: No, I don't think so. I mean, well, the Russians do. The Russians have killed people in Dubai. You know, there are exceptions around the world. And there - Litvinenko in London, which I think clearly the KGB or somebody in control in Moscow killed him.

CONAN: We're talking about assassinations, targeted killings, the distinctions and the gray areas. Our guests are Bob Baer - you just heard - former CIA officer, now Time.com's intelligence columnist, author of "See No Evil" and most recently "The Devil We Know: Dealing with the New Iranian Superpower." Also with us is Amos Guiora, professor of law at the University of Utah, former legal adviser to the Israeli defense forces.

You're listening to TALK OF THE NATION from NPR News.

And let's get Randy on the line. Randy is with us from Ann Arbor.

RANDY (Caller): Thank you, Neal, for taking my call.

CONAN: Sure.

RANDY: I was curious to know what the difference would be if the person or the targeted individual was to be considered wanted either by whichever state or internationally.

CONAN: Come again?

RANDY: If the targeted individual was wanted, say, for example, Osama bin Laden...

CONAN: I see, if he's on a list somewhere.

RANDY: Exactly.

CONAN: Okay. Would that make a difference, Amos Guiora?

Prof. GUIORA: Well, the cases that, to the best of my knowledge, at least in the Israeli paradigm, the decision to conduct a targeted killing is based on intelligence information indicating future activity of the individual based on intelligence information. So it's not random.

And to Randy's question, are there lists? Well, there are targets that are -targets who are being surveilled, monitored, who's being wiretapped, and that's pretty clear and that's out in the open. The question is whether or not their future activity is sufficient enough to justify a targeted killing.

And it's important to add here that these are not random. It's clearly based, when done correctly, on intelligence information suggesting this confluence of intelligence information and severity of the future act that this individual is planning on undertaking, which means that in that way it's not random in the least. It's highly thought through based on hardcore intelligence information, which again goes back to what I said earlier about the reliability of it and indicating future action this individual is planning on undertaking.

CONAN: And Bob Baer, this is just an assumption on my part, but members of the Hakani network in Pakistan, members of Quetta Shura of the Taliban leadership, members of al-Qaida, they - seem obvious they're on a list somewhere.

Mr. BAER: Oh, I think they are. Remember, we killed Baitullah Mehsud, who was the head of the Taliban in Pakistan, and he wasn't really on an American list like bin Laden is, the most wanted list.

CONAN: He was on the Pakistani list.

Mr. BAER: He was on the Pakistani list, so we've expanded the assassinations to people that aren't really our enemies. I mean, they are allies of our enemies, if you like.

CONAN: And so, therefore - thanks very much for the call, Randy.

Prof. GUIORA: Neal, can I jump in for a second?

CONAN: Go ahead, please.

Prof. GUIORA: One of the really important questions in this entire discussion is how do we define threats. Do we just look at threats as direct threats or an indirect threat, because what's really important in the targeted killing paradigm is to be able to articulate to ourselves that the individual presents an immediate concrete threat. If it's amorphous, murky, ephemeral, then I would suggest in the context of, again, person-specific counterterrorism, that would be ineffective and I think probably illegal.

CONAN: Let me ask you - we just have a little time left - Amos Guiora. Have you ever regretted a decision you made, either way?

Prof. GUIORA: No, and I think that because the decisions are so thought through and are, in many ways, based on this absolute criteria that I've articulated, and I think my - the idea of having guidelines, criteria, which are developed and also implemented is the most effective way to minimize the loss of innocent life in the context of conducting legal self-defense. And we have to remember at all times that what we're talking about here at the end of the day is self-defense. And the question is, how does the nation-state conduct self-defense? Targeted killing absolutely is the implementation, the manifestation of aggressive, preemptive self-defense based on Article 51 of the United Nations Charter.

When done in the manner that I suggest it be done, it is legal. When it is done in a way which there's extraordinary collateral damage, then it needs to raise significant questions. And my final thought here before...

CONAN: Very quickly, if you would.

Prof. GUIORA: Absolute need for criteria.

CONAN: Thank you, Amos Guiora, now a professor of law at the University of Utah, joined us today from KUER, a member station in Salt Lake City. Our thanks as well to Bob Baer, the former Middle East CIA field officer, now at Time.com as their intelligence columnist.

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