Pakistan and elsewhere have been innocent civilians, mothers, children, young and old men in the wrong place at the wrong time. They have implement add rigorous screening process at the white house deciding who ends up on the list. The president approaches the program with solemnity and care and the policy has been efficient and effective in decimating al qaeda and other terrorist groups. Its been said, quote, the enemy is really, really struggling. These atakes have produced the broadest, deepest, and most rapid reduction in al qaeda Senior Leadership that weve seen in several years. My partner Michael Isikoff outfound a memo that outlines why they believe they have the legal thoort authority to use force. At thursdays confirmation hearings for his nomination to head up the cia, white house counterterrorism director raised questions about the memo and the programs it helps justify. Your view seems to be that even if we could save american lives by containing more american terrorists by using traditional techniques it would be beer to kill them with a drone or let them go free than to detain them. Could you explain that argument . Is your testimony today that the huge increase in the numb beer of lethal strikes has no connection to the change in the Obama Administrations detention policy . Do you believe that the president should provide an individual american with the opportunity to surrender before killing them . No topic that we discuss regularly on the show invites quite the level of backlash on the social media as the kill list and drones. Given the often disingenuous criticism the president has faced i can understand why dechl carats view it with cynicism suddenly expressed by conservatives this week, much of which has been forced on liberals hypocrisy. I had to laugh myself when rue put murdoorurdoch tweeted the following. He meant, i think guantanamo. Many viewers who have responded online have accused me of being naive or go out of my way to criticism the president or stoking controversy where there is one. It is true, polls show it supports targeted killing. Partly i think that dice to the fact the public hasnt been given much information about exactly how the information has come to the conclusion it can carry out these killings, even against citizens and partly because the worst effects of the policy, the Collateral Damage or more accurately, the children who are 1 years old who our weapons kill are almost entirely inviszable to us. Many, perhaps even majority of democrats, even selfdescribed liberals might support it for the same reason a blogger lou segal gave this week. He wrote, though this might sound like a cold war liberal defending cialed cps and military interventions, i support president obamas drone attacks. And i admit that im a hypocrite. If a Republican Administration were executing these practices id probably join in. But i trust this president s judgment that the drones are a allegedly mat way to take terrorists who would if they could kill thousands of americans, hes making a traldoff knowing that a successful massive terrorist attack against us would result in a far greater damage to our democratic institutions. Would you rather we have boots on the ground like the iraq war . Isnt this precisely the kind of change we were promised . This narrow choice between big swrie lens and smaller violence shows, i thing, just how fully we have all implicitly adochted the war on tar rohr, how much they continue to set the years of our thinking years after theyve been displaced from office because that argument presupposed we are at war and must continue be at war until an ill defined enemy is vanquished. What is the alternative to small wall. If the existence of people out in the world who arrively working to kill americans means we are still at war, then it seems to me we will be at war forever and well surrender control over whether thats the state we want to be in. We could be a nation that declares its war over and goes about rug russly, using diplomacy and police work to protect us from neuter attacks. The Obama Administration quite austen tash shusly presented it. Even after the troops come home from afghan starngs we will still be a nation of wafrmt in 1832, carl wrote war is an act of force. Its freely operating and obedient to no law but their own. Much in the last century, particularly after the horror of the second war was an attempt to prove clausewitz was wrong. I say we choose the lauchlt well sew you right after this. Twins. I didnt see them coming. I have obligations. Cute obligations, but obligations. I need to rethink the core of my portfolio. What i really need is sleep. 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Hes a National Security correspondent for the magazine. Richard epstein. It ice great to have you here. I thought, jeremy, youve been reporting on this for a long time and you and i have had conversations ononthis through your reporting. How the operators, implementing, this kill list, this program of targeted killing understand the legal regime theyre operating within, right . I mean where does the authority flow from who ultimately is making shots and giving them assurances that what theyre doing is legal . Right. I mean there are two basic ways that these operations are conducted. One is do it through the Central Intelligence agency and it could be a covert, a. But the bin laden raid was not carried out by cia operations. It was carried out by a special team, s. E. A. L. Team 6. The other is the military can conduct Clandestine Operations which will eventually be owned by the president. The reason you have a covert action take place is if it goes wrong, the u. S. Can deny it taking place. From my perception, theres a different said of understandings. He was working on the highvalued targeting program and i talked to him about the kill of the boy. Hes a 16yearold boy, son of anwar ail awlaki. He said theres a reason im not doing this anymore. Stanley mcchrystal who ran it and is often associated even though hes a social liberal, mcchrystal has come out and said this is a counterproductive policy because of the potential for blowback and the hatred that it inspires. You asked what sounds like a simple question but it has a complicated question. The story has broken out into the open and theres a discourse now that wasnt happening a week ago. I want to talk about how we should you know, thats internally how the laws understand and i think that the white house has been very clear about were asserting this authority. Were signing off on this. The buck stops here. What body of law is obtained here . What is the check list, how many hurdle dwrous have to jump over before you say there is a guy were going to target for summary execution without trial . Just to be clear, i did not work on this particular issue. And you probably couldnt be here if you had. Exactly. And think this is one of the confusing and disturbing parts of the memo is that it refers to a bunch of different bodies of law and you talked at the beginning of the program about are we in a war. The memo asserts that its acting that these authoritieses are pursuant to law of war authorities which provide one set of possible answers. It also makes a second air serks that these authorities are permissible under a selfdefense framework that could existve if we get to the point where the law where the war ends, the conflict with al qaeda ends. And to me that is a very potential potentially. It sites the authority, military force thats passed. Then theres also the broad principle of selfdefense as an International Law precept which is if some countrys about to launch some horrific attack on you, youre allowed to defend yourself. Thats just a general principle. And, richard, you argued basically that when were in this terrain, were almost by necessity in a land that is sort of lawless and just dependent on judgment, prudence, and care. Well, i wish it were otherwise, but think in the end it was not. The way i approach the subjects. I think about how you think of selfdefense. What happens is you start with a bold declaration of it, which is selfdefense is always appropriate and then immediately you have to sort of hem it in with questions about good face. And those are single actors. When you go to it, the information nation is weaker. You could try to ju dishlgize this in some particular sense but at that point you simply transfer the problem to somebody who doesnt have the responsibility and one of the serious dangers you run into is it givens deniability to the people who set up the situation because youre not going have this as a trial. Youre going to have it as an expar tay kind of proceeding and i would rather have the administration on the hook for the whole thing. At this particular point you have to dial down your frequency. If you were looking at the al qaedatype situation, you vanquished them, doing think youd want to have a change in general policy. I think youd want to have a ramping back on the grounds you cant cross the hurdle. The idea of per pet wul war plays because it ends up being justification for a lot of things. And an excuse for some. The president talked about creating a legal structure. Creating a lethal structure with oversight checks on how we use unmanned weapons is going to be a challenge for me and my successor for some time to come. Theres a remoteness to it to make it telling too somehow think it can without any mess on our hand solve the veking problems. That gets to the question whats the bar for actually doing this stuff. I want to talk about that and the concept of imminence and how important that is and then whether we are at a perpetual war. What does that mean for the way we operate, as citizens, as a nation right after we take this break. One . Think again. Introducing olay professional even skin tone. Developed by experts in skin genomics to target 5 major causes of uneven skin tone and help restore even color. Olay professional even skin tone. If we took the Nissan Altima and reimagined nearly everything in it . Gave it greater horsepower and classleading 38 mpg highway. Advanced headlights. And zero gravity seats . Yeah, that would be cool. Introducing the completely reimagined Nissan Altima. Its our most innovative altima ever. Nissan. Innovation that excites. All right. Richard made this argument that i think is a really interesting one an has intu tivg appeal to people which is basically like when were in this universe of making these decisions about essentially battlefield considerations or theres some Training Camp and are we going to strike it north that you just have to essentially do this kind of balancing act of interest and just like approach it with prudence and care and have some kind of process internal to the administration but you cannot, in his words, judicialize this. It cant be the sort of thing you run through the court for review and i want to hear your response to that. Well, there are a number of contested assumptions. First we should talk about what the legal standards are, and the law is clear under International Law, selfdefense answers the question of when one state can violate the sovereignty of another state by using force in their territory. It doesnt answer the question of whether the use of lethal force against a particular person is lawful. Those answers come out of the context of Armed Conflict from law that says you can target people if they pose a specific concrete and imminent threat and that makes sense. You dont need judicial view when those conditions are met. Theres Armed Conflict when someone is directly participa participating in the conflict. It completely confuses those standards. We seem to be accepting the conclusion that a person is someone who can be targeted and making policy conclusion that we want to be able to kill them and from that conclusion picking and choosing the different kinds of standards that might apply. I think one of the most disturbing aspects of this is we seem to have entered the age of precrime where people are patterns of life are studied. If youre a military aged mail in a certain region of yemen, the white house is essentially asserting that these people are terroristed and that we can kill them, and to me that is thats an incredibly dangerous threshold to have crossed. I mean redefining imminent in the way that the white paper did where it may be possibly at some point in the future this person would pose a direct threat to the United States, that combined with the signature strikes is a disturbing aspect of that. Could i comment . Yes, please. I think the appropriate thing to do is to ask the question about this precrime stuff and the criminal laws more complicated on that. We not only have a law of murder, with very a law of aiding and abetling and conspiracy to commit murder and under these circumstances if theyre engaged fulltime conspiracy, its certain they could be prosecute nard if we send out the call and say, come on home and be prosecuted. Theyre going to flee at that point. They become outlaws. So i dont think youd f want to say every man in yemen counts as a terrorism because hes in the wrong program. I receive one instant of abuse which is truly regred gretable if youre killing a 16yearold kid. I think you have to look at the overall error rates taking into account both successes and famures. Let me just follow up on that, which is that part of the problem here is i just its very unclear what the error rate is, right . I mean all of this is shrouded in secrecy. What counts as error. Jeremy referred to as the secrecy strike which is defining civilians in way that has a lot of latitude. If you get a military age man in a strike its by definition not a civilian. We dont know the empirical matter. This white paper is recognizing apparently limitations that the administration thinks applies to citizens, right . So that seems to be the citizen level. We have no idea what stan 2k5rds it is applying to noncitizens, and, of course, to our knowledge there are four citizens who have died under the targeted killing program to date. Meanwhile there are approximately 4,000 people who have died. And what we have are assertion that the right people are being killed but in response to credible allegations that hundreds of civilians have died, silence. Yeah. And i just want to i want to respond to something jeremy said earlier because i think this goes back to decides what frame worj are we operating under. If were operating under a war construct and if theres a huge question on who qualifies and when that war ends, its a debate that needs to end and i believe the administration add least hinted through a speech that was made back in november by the former General Council to the department of defense its a huge critical question, and in war, killing is permissible. This is not torture. Tortures imper messable in every situation. Killing is permitted in war. And the question is what do we do in this new kind of conflict in a situation when were talking about potentially killing not yet any. As lodge as you have the ability. Nobodys in favor of this. Wait a second, wait a second, wait a second. You can imagine, you know, an al qaeda cell that was in the wilds of utah holed up in a compound, right, in which the balancing test. The balancing interest is can you capture them and is there going to be undue harm . Will it be too hard . You can malk a scenario in which the test that is laid out in the white paper leads do you the conclusion that under that balancing test you strike it. I think you want to attack the test. But before you start to say that these things are likely to happen, if you had a pramg like this going on i didnt say exactly. Even impropable. The key thing to do is not worry about imagining but worry about demonstrated illustrations of abuse and there have been some and then the question you ask is whether or not theyve tried to take something. To quote john brennan im not a lawyer. I am. But brennan said im not a lawyer and then said everything were doing is perfectly legal except when asked about torture. Then he said im not lawyer. I want any lawyer at the table here and there are a few of them, tell me that signature strikes are perfectly league. The idea that you can say a particular region of a country is known to have terrorists though theres no indictments. I would reject that. Thats what this administration has asserted. For years thats what were talking about here. Were talking about precrime. And its there are cases, there are documented cases of missile strokes. Drones are one part of it. Ac one 30, cruise missiles. One person may or may not be involved in al qaeda. Hold that thought. Im going to take a quick break. Well continue