The legal, political arguments for drones

>>> so let's assume anwar al awlaki is what presumably precipitated this. the white paper was written after he was kill. we hope they're writing the memos before the strikes are happening. let's say he's really operationally involved, actively in involved in yemen where he is doing things we know he is. we have the christmas day bomber. he's, you know, coordinating logistics for a strike on america, he does pose a threat. if the targeting killing is wrong and we shouldn't be doing it. it's not legal or strategically wise or moral, what's the option?

>> i think the second prong is important. there needs to be a serious inquiry and feasiblelet of capture. again, i go back to the question if it's a armed conflict . i don't think there's if there's evidence that he's engaged in ongoing attacks and capture is not feasible, i don't think it's as hard of a question. if that information is not accurate and we're talking about operating in a self-defense rubric, i think that there needs to be extremely high demanding standards for determining that there is an imminent threat .

>> well, part of the problem is that all of those standards are going to be internal to the executive.

>> that is pa rt of the problem and what we're assuming is partly what's contested. look. the government has made serious allegations against anwar al awlaki. there's a difference between allegations and evidence. it never charged him with a crime. throughout a long period of time. and the reason the courts exist are to distinguish between allegations and evidence.

>> right. but in a war framework that's not the case.

>> we're assuming it's war framework.

>> the president is authorized toual all necessary use in. planned, authorized, committed or aided in the terrorist attacks or har wobored in future acts of terrorism against the united states by such nations, organizations or persons and it's cited in it. we're at war.

>> well, that -- but that was written for the post 9/11 to ought rietz the war against afghanistan, right?

>> no. it's much more general than that.

>> the issue is we have undefined operational forces and al qaeda and those are hotly contested issues. we're saying and we've said against the government that at the time that an kwar al awlaki and the others were killed there was no around conflict in yemen and the government instead of saying here are all the reasons why they're saying we don't think the court should look at it --

>> just to be clear, the government's law is to secure state 's secrets.

>> saying they have no role in assuming it's an armed conflict .

>> i don't think you could possibly make the claim that there isn't an armed conflict going on given the kinds of threats that are involved. i mean it seems to me that the remarks you made at the outsit follows. nothing like that is going to happen. i mean -- or that we take diligent work yochl view to be extremely proactive. i do think that this is not a judicial question whether it is an armed conflict . there's a political question there. thing on that one, hina's wrong. i think it's ugly and we're entitled to take some defense. i don't think what we should do is tolerate it. i don't think we should smuggle it in here. it's a huge public check and i want to her to denounce him at every opportunity.

>> there's not a public check in the sense that we don't know what's going on.

>> i think that's the critical point. there seems to be much, much greater transparency. there needs to be a much greater accounting of the legal criteria, the fact that it took so long for this white paper coonly out that lays out the purported legal justification for engaging in these types of strikes is unjustifiable and there needs to be a public debate and a debate with the international partners about what the laws are, which i think is highly contested but more importantly what the laws should be and the policy should be.

>> which should bring us to the brennan nomination. here we're talking about tran parency and secrecy. this white paper came out which shows you how contested it is, that it's now becoming an issue for republicans and democrats alike. john brennan said he wants to optimize transparency and secrecy and that is hard to understand except what's happened here is we don't have all of the legal memos, the republicans don't have the legal memos and senator ron wyden 's words, we should know that authority. the summary for the argument is no substitute for the argument itself.

>> right. and there's no way, that i think you could defend keeping the legal rationale secret.

>> absolutely.

>> i have a kind word for brennan, at least one. those are the wrongd words. what he should have said h very to balance the trade-off and ask the question is it going to hamper the effort to try to chase after people. that's a much more defensible people doing it. i'd rather attack him for what he should have said instead of what he did.

>> i think it's a kabuki oversight. the follow-up was weak sauce. there was no follow-up on some of these core questions. we're talking about the most fundamental rights that we have in our society and i think that continuation should shoulder a lot of the blame for this and i'm sorry. you can't, you know, conduct foreign policy declarations by league things to the media. that can't be your oversight. there has to be something.

>> jennifer daskal from georgetown eun jerts and jeremy scahill and hina and jeremy epstein.

>> we're joined by paul krugman on what he wants to hear in the president's state of the union address right