Up | February 10, 2013
>>> former counsel to the assistant attorney general for national security in the obama justice department . jeremy, the author of "dirty wars." it debuted at the sundance film last month. he's a national security correspondent for the magazine. richard epstein . it ice great to have you here. i thought, jeremy, you've been reporting on this for a long time and you and i have had conversations on-on-this through your reporting. how the operators, implementing, this kill list, this program of targeted killing understand the legal regime they're operating within, right? i mean where does the authority flow from who ultimately is making shots and giving them assurances that what they're 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, there's a different said of understandings. he was working on the high-valued targeting program and i talked to him about the kill of the boy.
>> he's a 16-year-old boy, son of anwar ail awlaki.
>> he said there's a reason i'm not doing this anymore. stanley mcchrystal who ran it and is often associated even though he's 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 there's a discourse now that wasn't happening a week ago.
>> i want to talk about how we should -- you know, that's internally how the law's understand and i think that the white house has been very clear about we're asserting this authority. we're 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 we're going to target for summary execution without trial?
>> just to be clear, i did not work on this particular issue.
>> and you probably couldn't 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 it's 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 self-defense framework that could exist've 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 that's passed. then there's also the broad principle of self-defense as an international law precept which is if some country's about to launch some horrific attack on you, you're allowed to defend yourself. that's just a general principle. and, richard, you argued basically that when we're in this terrain, we're 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 self-defense. what happens is you start with a bold declaration of it, which is self-defense 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 doesn't 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 you're not going have this as a trial. you're going to have it as an ex-par 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 qaeda -type situation, you vanquished them, doing think you'd want to have a change in general policy. i think you'd want to have a ramping back on the grounds you can't 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. there's 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 what's 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?