In light of drones memo, questions on transparency in Obama foreign policy

>>> one of the ben filths of having the worldwide resources of nbc news behind you is that you get exclusives like this. the doj memo that explains why it believes it's perfectly legal for the president to kill any american overseas who's a suspected senior terror leader. according to the 16-page memo, the executive branch doesn't have to answer to anyone, not the courts, not congress. no one. it lays out a three-part kill list criteria, step one, informed high level u.s. official has determined the target poses a, quote, iminnocent threat of violent attack and clear evidence of an attack is not required. step two, capture must be, quote, infeasible. and step three, the strike must be conducted according to, quote, laws of war principles. but this isn't a just in case guideline. the targeted killings of u.s. citizens have already happened. september 2011 , two were killed in yemen . both were u.s. citizens . yes, it's believed al allaki was connected to the christmas day bomber but he was never charged with a crime. here's how the doj and the white house defend the kill list.

>> our concern is to keep the american people safe but in a way that's consistent with our laws and consistent with our values.

>> we conduct those strikes because they're necessary to mitigate ongoing actual threats, to stop plots, prevent future attacks and save american lives. the strikes are legal, they're ethical and wise.

>> critics say this administration is putting the constitutional rights of american citizens in jeopardy and disregarding federal law that criminalizes assassinating u.s. nationals. why? in the name of diplomatic self defense . jameel jaffe says this recognizes some limits on the authority it sets out but the limits are elastic and vaguely defined and easy to see how they could be manipulated. if this came out under the bush presidency , wouldn't there be protests on pennsylvania avenue ? calls for impeachment. didn't senator obama demand transparency and promise it in his own? the issues enumerated at this table, i'll go through again vis-a-vis this memo. talked about civilian deaths including children. this doesn't account for that. doesn't try to justify that or explain that. rules of engagement which i have said are necessary going forward to continue a drone policy. questions like are we at war when we employ drone strikes in yemen , for example? is that a war situation? would we consider pakistan declaring war on us if they advanced drone strikes on us? i think we would. this document basically says we can fire on a host nation with their consent or because they do not give it. that's pretty fuzzy. that's pretty vague. the third issue we have talked about is due process . and apparently we can completely subvert the constitution and kill americans without due process if their capture is quote/unquote infeasible and imminent threat . that's vague and easy to sort of get around. and fourth, the issue that i've also brought up is just the hypocrisy. this is fine and good under obama and the anti-war movement has become invisible for the most part and under republican administration this would be a huge deal.

>> yeah. i think you have a point there in terms of if this had come out under bush there would be a louder outcry from the left than you're hearing. that said, i think this document is going to now be a central -- play a central role in the brennan confirmation hearing this week and a number of democratic senators asking pointed questions about this document and more specifically whether the white house and department of justice will release the actual memo. this is a summary memo.

>> i talked to senator king's office today, democrat, maine. he said he's very much looking forward to making this a crucial part of the questioning on brennan on thursday.

>> right. and again, what this document actually is, it's like a white paper , a summary of the actual official office of legal counsel for the department of justice that authorized the killings of american citizens. the concern and it's popping up a little bit today, the concern is that there are -- the actual memo is a lot more damning to the administration . the memo is a lot broader, it may be vaguer in terms of --

>> this is pretty broad and vague.

>> right. and yet it would be that it doesn't even limit it necessarily to this war on terror that and that is really the risk here and if you want to defend this on the grounds of i don't mind the obama administration maybe doing this, you are giving the power, the latitude to any future president. a president you may not like or trust. that's the risk with executive authority. if republicans go along with it, democrats go along with it and then both expand it, future president gets that power and then i'm not comfortable with this.

>> we're at war with al qaeda right now. and if you join al qaeda you lose the right to be an american. you lose a right to due process and committing treason. i don't why should we should expand american rights to people to kill americans , committing treason. this is not criticizing the united states . this is going to war against the united states .

>> what about the 16-year-old killed?

>> what do you mean what about the 16-year-old?

>> also an american citizen , 16 years old.

>> born in denver killed by one of these authorized drone attacks.

>> we have said that. we have criticized that all the way through --

>> we are not talking about civilian casualties .

>> this is the son of al alawaki.

>> if we have people who are working against america then they need to die. because they're plotting to kill americans . and if we don't protect americans --

>> based on what evidence, toure ? this is the problem.

>> look.

>> where's the evidence?

>> i think the thing here is it's such a complicated issue and easy to have a black and white view of it. it definitely falls in the areas of gray and i think there's two questions here. one is the sort of is it legal? is it moral? is it ethical? something the united states should be doing in general? another question is of transparency. i'm with toure . if we are at war with al qaeda , and part of the challenge here is that is a war that doesn't have the border of a traditional war and grappling with here, that's part of the struggle. but the part i'm uncomfortable with is, why couldn't the memo be made public to start with? there's a fundamental lack of transparency, we don't know how many civilian casualties they are, what the decision -- what the tree looks like to make the decisions and the american public don't have a chance to weigh in on what are we comfortable with, what's in the national security interest and the traditions of our country?

>> the american public -- congress doesn't even get to weigh in on this.

>> that's exactly right. the other piece that's important in the bigger picture is. we don't know what broader impact this strategy has on sentiment towards americans abroad. how do people in yemen feel about this policy? how does that -- is it used as an effective al qaeda recruiting tool? we don't know the answer to those questions either. that's where my issue comes in with the lack of transparency.

>> let's not do things because we might radicalize people.

>> that was an argument under bush.

>> when we say this person is leading al qaeda to do things -- when you join al qaeda --

>> you're kind of what you're setting up is a straw man. i don't -- i don't think many people would take issue with if somebody is an enemy combatant and document and prove and provide evidence plotting attacks to kill americans and the united states does not have an obligation to go after and take out that individual or that group of individuals but the point is there's a shadow -- sort of shadow government almost. taking place behind the scenes and where the obama administration wanted it to be and it's basically what this document says is a high-ranking official makes the determination whether somebody poses an imminent threat and says in the memo, imminence as defined by the justice department does not require the u.s. to have clear evidence that a specific attack on u.s. persons and interests will take place in the immediate future.

>> i'm comfortable with that. as soon as you join al qaeda , that's an imminent threat to the united states . you don't have to be --

>> who determines that someone joined al qaeda ?

>> talking about father and son . talking about a father and son killed here and the father up to some pretty bad stuff but what about the son?

>> one thing that's interesting going back to john brennan and the hearings that will occur on thursday is on the one hand, he has been in a lot of ways architect of this policy, the man behind the drone strike policy. on the other hand, it is reported that he is also the sort of moral compass , he is the voice, the primary voice of restraint and has advocated for moving the drone strike policy from the cia more to the military and if it was under the us a passes of the military it would require greater transparency. of course, he's going to be there toeing the president's line, the administration 's line. it will be interesting to see if there's hints of the desire to move it more to the military from the cia.

>> we are in a post geographical war with people that don't wear uniforms. if we don't attack them in the --

>> no one doesn't want to attack them.

>> where are the limits? it has to be somebody part of al qaeda , something part of the war on terror as it's defined. there are no -- that's the problem is there are limitations. could be anybody anywhere according to this memo.

>> no leg to stand on when this technology turned and used on us or allies. we will have no leg to stand on legal or otherwise.

>> that's not true. that's not true at all. al qaeda attacked this nation. we are attacking al qaeda back. there's no --

>> a 16-year-old was not in al qaeda .

>> hold on. but the difference is --

>> 700 innocent children were not in al qaeda , toure . that's what's happening.

>> it needs to be codified because if we don't -- there needs to be a standard because if we have no standards for otherwises to articulate, when another country wants to use it against us, we don't have an ability to say, well -- there has to be some sort of international protocol how to handle this.

>> no matter who's running the administration , yeah.

>> all right.

>>> up next, the president out this afternoon pushing once again for a grand bargain. yeah, that's out and howard fineman will join us in the guest spot as "the cycle" rolls on for tuesday, february 5th . in honor of new york getting the first country station since 1996 , nash 94.7, i'll be offering a diet of country tunes. this is huge, folks. we've all had