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DRONE WARS: ARE WE GOING TOO FAR?

[background conversation] Ambassador Kurt Volker: [0:13] Ladies and gentlemen, thank you very much for coming this evening. This is the seventh and final debate of this year for the McCain Institute.You may have seen, from our website or elsewhere, we've sponsored a number of genuine debates about foreign policy issues, ranging from Syria to Iran, to Afghanistan, to the defense budget in Egypt.Tonight, we have what is one of the most timely debates that we've had. Is this mic working, by the way? Thank you. Which is drone strikes, and lethal use of drones.Are we protecting our country, and do we have a lethal program like this well in hand and with the appropriate checks and balances and oversight? Or are we out of control? Have we become addicted to low-risk, easy killing with collateral damage that sometimes we can't even calculate?In order to debate that question this evening, we have an extraordinary panel of experts with a great deal of personal experience in this area. Before we turn to them though, I want to introduce a special guest this evening.We've had, in the past, Senator John McCain here to welcome guests for these debates at the McCain Institute. He's not able to be here, and you may have seen that was just in Libya.Tonight, instead, we have Mrs. Cindy McCain, who we're delighted to have, who was kind enough, after another speaking engagement in Washington, to come and say a few words here. Let me introduce Mrs. Cindy McCain. [applause] Cindy McCain: [1:56] Thank you very much. Obviously, I'll be very brief. Welcome everyone, and thank you for coming and participating in this very important subject.This is important to me too because, I really want my packages delivered by Amazon... [laughter] Cindy: [2:10] ...on my doorstep, with a drone, please. This is a very timely discussion tonight. This is a very timely debate.More importantly, we are looking forward to interaction from everyone in a thoughtful and kind manner, if I may put it that way.Welcome, on behalf of my husband. He does say hello. He, as the Ambassador said, has just returned from Libya. He was just in Libya. He's in Saudi Arabia right now. He'll be home tomorrow, I hope, anyway.Welcome. Thank you, and thank you for participating in a McCain event. [applause] Kurt: [2:47] Thank you very much. If I could, I'd like to make a few housekeeping announcements. One of them, #MIDebateDrones. Feel free to tweet. Put your phones on vibrate so they don't ring, but feel free to tweet. We'd like to have a conversation online as well.These debates are broadcast by live webcast. We have viewers in Arizona State University, it's broadcast on their television as well. The McCain Institute, as you know, is a part of Arizona State University.We'll have questions from the audience. We'll start with opening statements of five minutes each, from each side. We'll then have a three-minute rebuttal and then time for questions.The questions will begin with our moderator, who will be joining us in a minute. Following that, there will be an opportunity for the

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audience to ask questions as well.What I would ask, if you're asking a question from the audience, please make it a question. I know it's tempting to want to jump into the debate as well, but we really want to bring the issues out from the debaters that we've assembled here.I also just want to introduce our moderator who's just joined us, Juan Williams from Fox News. Before I turn it over to Juan, I just wanted to bring up as well that shortly before we started the gathering this evening, we learned the news that the anti-apartheid leader in South Africa, Nelson Mandela, had died, which I think is a great loss for all of us.Someone who shined such a light on human rights and justice in that society, and did it in a way that really is a model of what we'd like to see in the world, in the future.On the issue of drone strikes, let me say a few words, just to frame the topic, and turn it over to Juan.The increase in the use of lethal drone strikes to kill terrorists, to find a different way of using military force to keep the United States safe, has been one of the most dramatic developments in national security. Beginning in the Bush administration, and then expanding considerably in the Obama administration.This raises a number of questions that as a country, we have to grapple with. I would argue that we haven't grappled with it nearly enough.There's a moral dimension. Are we killing the people we mean to kill? Are we killing anyone who we shouldn't? Do we have the right process for deciding this? Are we doing it because it's easy? Are we doing it at times when we wouldn't otherwise? There's a whole moral dimension to what this technology means.There's a tactical dimension to this. Is it effective? If you kill this terrorist, do you generate five more? There's a strategic dimension. What happens when other countries decide they want to use drone strikes too, and what are the rules that we would want them to adhere to?I think there's a philosophical dimension to this, which is what do we want to be as a country? Do we want to be a country with a permanent kill list, where it's part of the president's job description to sit in the Oval Office and decide who we're going to take out today?Those are some of the dimensions of this. I hope that we bring these out. We have an extraordinary group of debaters here. In order to introduce them, I'm going to pass the microphone now to Juan Williams from Fox News for kicking us off. Go ahead. Juan Williams: [6:19] Thank you, Ambassador. [applause] Juan: [6:25] This is a timely debate. I don't know if you read the op-ed pages of the major papers but if you do, you know that both sides are being well represented on the notion of whether or not drones are a legitimate weapon.Not only is the question whether or not they are legitimate, the question has to do with how the United States goes about conducting warfare in a time of terrorism.We have people here today who have been involved in various levels of the actual practice, as well as the debate. Ambassador Volker suggested that I introduce them but I think that in a way, what we should do is have them introduce themselves, and explain their position with regard to the use of drones and drone strikes.Let me ask you to introduce yourselves. John Bellinger. John Bellinger III: [7:20] Thanks, Juan. Nice to be here. My name's John Bellinger. I guess I have to say I was present at the creation. I was the NSC legal adviser in the first term of the Bush administration when the armed drone was developed, when we first developed the legal rationale for use of the armed drone.Then in the second term of the

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Bush administration, I was the legal adviser, that's the general counsel for the State Department. Which came to me then to defend a lot of our policies. I lived through this through eight years of the Bush administration. Juan: [7:50] Thank you, John. Frank Kramer, Vice Chairman of the Atlantic Council Board. Explain how you got involved here. Frank Kramer: [7:56] I've been in two administrations, most recently I was in the Clinton administration. I was the Assistant Secretary of Defense for International Security Affairs.I go way back on the counter-terror approach. I got involved in the early days of the Carter administration, when we developed the Delta Force and carried forward. I continued to do counter-terrorism in the Clinton administration, and have worked with all these countries. My first exposure to Afghanistan, for example, was in 1978. Juan: [8:26] Daphne Eviatar, senior counsel for Human Rights First. How would you describe your involvement with this issue? Daphne Eviatar: [8:34] My involvement is not from within the administration but from outside of it and observing it. Human Rights First has really focused on how does the drone program comport with international law? A lot of our focus is on ensuring that both the United States and other governments follow international law. That's really where we come at this from. Juan: [8:54] Spider Marks, retired major general. How did you come to the issue? Major General Ret. James Spider Marks: [8:58] Juan, I'm a practitioner. I had to work within the policies and the ramifications established. I've been working with UAVs. Major Marks first started working with UAVs a quarter of a century ago. As well, John, I was present at the creation of arming our UAVs. I was the senior intel guy... Juan: [9:18] Define UAV for us. MG Marks: [9:20] Unmanned Aerial Vehicle. "Drone," we now call it. The vernacular "Drone," when we went to war in Iraq. Juan: [9:26] Frank, let me ask you to start our debate. What we're going to do is we're going to give each person two-and-a-half minutes to lay out where they stand on the issue and how they come to the issue. I'm going to do it one side at a time. I'm going to ask Frank to begin, Spider to follow up, and then we'll come to John and Daphne.Frank? Frank: [9:46] Thanks, Juan. I think the critical issue that this debate's going to turn on is whether we really feel that we are at war, if you will, or in a conflict with Al Qaeda and with what are sometimes called "Associated entities."If you think you're in a conflict, if you think you're at war, then I think you'll come to the conclusion that the policy is about right, and the legal justifications are there. Let me look at the policy issues, and then quickly at the legal issues.From a policy perspective, if you're sitting in a policy maker's

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seat, you want to make sure that this is a conflict that it's appropriate to use lethal force for. You want to make sure that you have effective means, and you want to make sure that the net net result, because whenever you use lethal force there are always downsides, that the net net result is positive.Then there's the legal dimension. You have to have the right framework. You have to have the authorization. You have to have the appropriate targeting criteria. You have to have accountability, particularly with respect to the Congress.With respect to the president's policy, the current policy, and it's very much like the policy of a prior administration, I think the president's very clear. We are in a conflict, we are in a war with Al Qaeda and associated entities.It's clear enough, I think, that drones are highly effective. Spider can talk to the particulars. But what they do is they get the military a dominant position in the battle space, and that makes a great deal of difference. It reduces the risks for other kinds of operations.From a legal perspective two administrations, both this one and the Bush administration, have said the 9/11 resolution, the AUMF authorization to use military force, authorizes the use of drones. I think that's also true from an international legal point of view. The Congress is regularly briefed on each strike, so the Congress is aware.When you add it all up, what I think you can say is from a policy perspective, we're operating under the laws of armed conflict. This is an effective way to go after a group that's in active hostilities against the United States. Juan: [11:56] Frank, I don't think anybody would doubt the effectiveness, but just to clarify, what you're saying is we are operating within the law, as it regards to this current war on terror? Or is this legal if we were involved in any kind of combat? Frank: [12:13] Certainly with respect to the first, we are operating within the law. The important thing, with respect to any kind of conflict, as you just said, is, is it authorized by the Congress or not? Or does the president have to use his constitutional powers?In the counter-terrorism circumstance, both administrations have said, ultimately, that the Congress has, in fact, authorized that. I think in a democracy that's obviously the best place. But everyone who's been in an executive branch has agreed that the president does have the constitutional authority to take actions. Juan: [12:51] But prior to the war on terror, this would have been against the law. Frank: [12:56] No, I don't think so. I think the... MG Marks: [12:59] If I could jump in here, we didn't have the capability, so the question might be more academic than... Juan: [13:04] It's just theoretical, speculative to say what it would have been in a non-war on terror circumstance? Frank: [13:13] Just to try to answer your question, if we were attacked by a terrorist group, then I think we would have... Juan: [13:20] No, in a state-versus-state combat situation.

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Frank: [13:25] Whether we could use drones in a state-versus...Yes, we certainly could. Juan: [13:31] Spider, your two minutes. MG Marks: [13:33] Thank you, Frank. Brevity's OK.My view of this is that the military and the Central Intelligence Agency has the capability, and the military has the capability certainly. They don't just bump into each other, but they overlap in terms of how this thing is applied.Again, my view is a very practical one, in that the collateral damage estimates, those CDEs, collateral damage estimates that are done before the implementation and the decision to use an armed drone, are very, very precise and very aggressive.There has to be an understanding that within the confines of what might seem a rather Byzantine and cloistered environment of military planners, and agency planners, and inter-agency planners, there's really hard, tough work going on in terms of what we know.Legally what do we know, what do these target folders look like? What are we going after? How can we recognize the target? How can we identify the target? How can we positively ID the target? And how we want to go after it?Those processes are very, very aggressive, and I've been involved in those my entire adult life, as long as drones and UAVs have been in place. Those rules of engagement are very precise. Those collateral damage estimates are very, very precise. I would argue that we are now, at this point, to your question, Juan, in a continuous state of war.What we are doing now will not go away, in terms of the threats and those organizations and entities that are actively pursuing us as a target. We've now defined what our "Normal" looks like.This is a capability that improved, it's only gotten better, and all of our enemies will figure it out. The real challenge that we have is, how to have our countermeasures to make sure that we don't lose the edge. Juan: [15:31] Spider, you understand that in terms of this debate, your mindset is all about military effectiveness and military strategy. But I image that John and Daphne are going to talk about what you call "Collateral damage," which is killing innocent people. MG Marks: [15:48] I would say that the most difficult decision is not the innocents that are killed often with the use of armed drones. But it's the persistent, and it could be very omnipresent, intelligence, surveillance, and reconnaissance mission, which is where drones got their start, that is more pervasive and probably more damaging.Let me be very blunt. We might kill two or three children in Afghanistan, which is a tragedy. We might have a capability, and we currently do, that is so pervasive, we could have ISR on top of everybody all the time. Do you have one? Do you have the other? Do you live within both of those? I think that's the nature.My view of this debate, if you have policy that too-narrowly defines the use of a drone, in other words a drone can't fit into it because of the policy, but you've acknowledged that this target, you've got to do something with that target, what are your choices? To send 12 men after that target. Is that the decision you want to make? Maybe. Juan: [16:52] No, but I understand your position pretty clearly.John Bellinger, your two and a half minutes to stake out your position on the issue.

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John Bellinger III: [17:00] Great. Thanks, Juan. I'm not really a dissenter on this. I actually agree with Frank and Spider on probably almost 100 percent of what they've said. It's part of what they've left out that makes me a mild critic of where we have become in the Obama administration.Let me clear on what the debate really is about. The controversy is not about drones. There is nothing inherently wrong with drones, although we could maybe argue later about if they're not only remotely piloted, but that there's no involvement at all. It's also not about targeted killings.Some people say "It's about targeted killings, killing people." If we were in a traditional war and you could only kill the person who you were targeting, with no collateral damage, then nobody would complain about that either. In fact, we international lawyers say that's a good thing. That's an advance.The problem is most of the rest of the world does not agree that the United States is in a war with Al Qaeda in different countries that allows us to kill people in Pakistan and Yemen, Somalia, and various other places.I, as you heard me say, was present at the creation of legal rationale. I do think that it is lawful, as Frank says, under both US law and international law, for the US to use force to kill a terrorist who poses an imminent threat against us, or is a senior member of Al-Qaeda. I have no problem with that in the Bush Administration, or the Obama Administration. The general legal architecture I'm fine with.What has happened under the Obama Administration, though, is President Obama, for whatever reason, has come to rely massively on drones. It's become his weapon of choice, dramatically increasing the drone program seven- or eight-fold.There have been, we think, 350 drone strikes in five years, killing 3,000 to 4,000 people. Here's the kicker, only four people have been acknowledged that we have killed anyone. It's essentially become a secret killing program. Can you imagine if we had gone through all of five years of World War II without ever acknowledging anybody who we were killing?I come out of the intelligence and covert action world too, I'm fine with some secret things. But for us to have killed 3,000 to 4,000 people, without acknowledging any of it, is a problem.The rest of the problem is none of the rest of the world really agrees with what we're doing. Maybe they secretly agree, but they're not telling us they agree. That's where I really have a problem as a lawyer for the United States. We want to be the good guys. We want to say that we're complying with the laws of war, and yet nobody else agrees with us.The Obama Administration, in the last couple of years, has tried to step up its game. They've given some good speeches. John Brennan has, the president this year finally got into the act and gave a speech at NDU, where he listed some restrictions on the use of drones.But those are unilateral restrictions, and they really have still not been clear on who they're killing, and what rules they're applying, or made any effort at all to reach consensus with other countries on the rules for the use of drones. Juan: [20:08] John, let me interrupt. Early on in your comments you said, "The rest of the world doesn't agree that we're at war with Al-Qaeda." John: [20:15] Right. Juan: [20:17] It's on that basis that they then question the legitimacy on the use of drones to kill people. Is that right?

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John: [20:24] That's right. It's hard for the rest of the world to really know what we're doing, because we're not acknowledging what we're doing. But a lot of it gets down to, they don't agree that we are in a war.If this were World War II, nobody would really be disagreeing. But much of the rest of the world really doesn't understand that the US can be in a conflict with a shadowy group in four or five different countries around the world.I think it would help a lot, I agree we can't disclose in advance, and we may not be able to disclose afterwards every single strike. But 4,000 people later and we've not disclosed but four? Juan: [21:03] Let me follow my line of questioning. Pakistan and Afghanistan, have they given permission for the use of drone strikes? John: [21:10] We don't really know. That has been a subject of great debate. Let's take Pakistan. The Pakistan officials alternately have publicly said that they have not consented. Previous presidents have said, "Actually, we did consent." It's widely believed that they have been privately consenting, while publicly criticizing. Juan: [21:36] Daphne, given that you have a sense of consent coming from the countries where the drones are primarily being used, I don't know if they've been used elsewhere in the world to kill people, what's your objection? Daphne: [21:48] I think that, first of all, it's not clear that the United States should consider whatever Pakistan has said or not as consent, given that the democratically elected government has said that it does not consent. It would really be quite undermining of democracy for the United States to say, "OK, it doesn't really, but we're listening to the military." That's not very productive in terms of US foreign relations.I think it's important to take a step back as to what is the legal framework here. Part of the problem is not simply that the rest of the world doesn't agree that we're in a war with Al-Qaeda. But also that the United States government hasn't clarified, when it uses its drones is it using it as part of a war with Al-Qaeda, and associated forces? Or is it using it to target specific terrorists that pose an imminent threat outside of an armed conflict scenario?That might seem like legal nit-picking, but it makes a big difference in terms of the laws of war. Most of the world interprets international law in a very clear way that is different than the United States interprets it.Briefly, in terms of if we're operating in an armed conflict, the United States can only lawfully target members of enemy armed forces or civilians who are directly participating in hostilities.But that's not what the United States has said. In fact, various administration officials have said it can target all members of Al-Qaeda, the Taliban and associated forces. But "Members" can be something much broader than armed forces. It can mean the cook, it can mean the dishwasher.Under international law, in this kind of a conflict where you have a state against an armed group, you're not allowed to target the laundry person. That's considered a civilian. That's the first conflict that we have with other countries in terms of who is targetable.It's led, for examples, to a lot of conflicts about the situation where the United States is targeting, or has in some instances appear to target, first responders after a strike. They'll then have a second strike. They might say, "Those are Al-Qaeda medical personnel," but that's not a legitimate

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target under international law. That's caused a lot of controversy with our allies.In terms of outside of an armed conflict, President Obama and his speech in April at the National Defense University said, "We only target people who pose a continuing and imminent threat."It's true that under international human rights law, outside of an armed conflict, the United States can defend itself by targeting individuals who pose an imminent threat to human life.But administration officials, at various times over the last couple of years, have talked about an elongated concept of imminence, or a flexible concept of imminence, and they've defined "Imminence" in a way that is actually far beyond what its ordinary usage is.The Justice Department, for example, had a white paper that was leaked to the media that defined "Imminence" as not requiring a specific threat, or one that's immediate, but something much vaguer than that. But "Specific and immediate" is what "Imminent" means.I think those are the two major points of disagreement on the international law that we have with our allies. It's one reason that we're undermining the cooperation that we receive from allies on this.I think also it sets a very dangerous precedent for other countries, who we may not trust, who either have this technology already, or may be getting it. Whether Iran, Russia, China. All of these countries, this technology is not prohibitively difficult to acquire, and it's something that's proliferating.It's going to be extremely important that the United States make clear, what is the legal framework? What international law do we believe applies here? To really make clear through transparency, as John talked about, that we follow it. Juan: [25:36] You surprised me. You really got me, because I thought you were going to say you thought it was illegitimate, given human rights in the world, for the United States to engage in this kind of activity at all, especially when it might have such impact on innocence.What you've said, I think, is it's legitimate to use it to kill people who are an imminent threat to the United States. It's just that you want it more clearly defined who's an "Imminent threat," and you want it put on the record so all the world can know the rules, and any subsequent actor can abide by those rules. Am I right? Daphne: [26:14] Exactly, yeah. Juan: [26:16] Again, you surprised me because it's so often the case that in fact innocents are killed. If the United States government could stop that, then human rights activists would be OK with it? Daphne: [26:30] I think, again, it depends what context you're operating in. Obviously in a war, innocents sometimes are killed, and the United States is required to minimize that as much as possible.But if we are operating in a legitimate war, that is actually a war where you have a sustained level of armed conflict between two distinct groups, and that's questionable in this global war that we're talking about. It's not clear that Al-Qaeda is any more a sufficiently organized group to even be one that we're in an armed conflict with.If you assume that that's the case, then drones would be a legitimate weapon because the idea is you're targeting individuals who can lawfully be killed in a war. But unless the United States makes it clear that that's who it's targeting, the rest of the world isn't going to believe that.

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Juan: [27:17] Spider, earlier you were making the case that this is an efficient way to go about the business of killing people that we want dead, the United States wants dead. There's just no question about it. So we come back to the question then of, well, why don't we have rules of the road? MG Marks: [27:34] We do have rules of the road. To address the very point, Daphne, that you were making, I think arguably we are in a continuous state of warfare of some sort. I think it's rather anachronistic. At some point we have to...John, I would demur.At some point we have to say, "What does 'An armed conflict' mean?" In fact, we're creating a military right now. We're in the midst of developing a military, taking what we have, what's extant, and turning it into something that we may not recognize.In all the scenarios there is little room for discussion on a state-on-state type of arrangement. In other words, armed conflict, by some traditional definitions, has kind of disappeared. We're not addressing that.We have other kinds of threats, fourth-generation kind of threats, low-tech with high-tech capabilities, which is what we've recognized and what we've lived with for the last decade-plus.The policy is not going to address the problem, which is innocents, we need to minimize, or at least eliminate, the loss of innocents when we use drones. Not if, but when we use drones. Policy won't address that. Technology is the answer.There will be a person in the loop, and there will be enhanced technology that allows you to more precisely understand what the target looks like, where the target is, or where the target intends to be. Those are technological advances, those aren't policy decisions that we're making. That's the conundrum right now.Does that make sense to you? Juan: [29:07] What you're saying is, it's just a matter of can we isolate the person? Can we wait for them to be alone? MG Marks: [29:13] Let's not wait. No, no, no, let's not wait. I don't have to wait. Why do I have to have a linear timeline that says I'm going to wait until it's good for him? I'm going to do it when it's good for me.That means through technological advances, and the fusing of all different types of intelligence that's out there, you now have a platform where you have coalesced all this intelligence, you've got a platform that can now be the tool of choice with which you will now use to go target that... Juan: [29:40] Frank, is there any policy though that goes beyond that, beyond the technology? Frank: [29:45] There is a policy. Juan: [29:46] There is a moral policy of US conduct. Frank: [29:49] There is a policy. The issue is not the weapon, the drones. The issue is the questions of military necessity. Is it important to do this distinction, which means distinguishing between a military target and civilians, and proportionality. "Proportionality" means that, given the level of military necessity, what is the impact going to be on civilians?The laws around conflict actually anticipate that civilians will be

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killed in warfare. That's not a good thing. It's a bad thing, but it's not illegal to do that.The question becomes, and as Spider said, he's been there and I've been there, and John has, and Daphne knows all about it. When the when the targeters actually work on this, they actually sort out, and there are rules of engagement about how you figure out what some people call "Collateral damage."I don't really like those words, because it really is killing people who are not combatants. We need to try and minimize that, but we don't take it down to zero.The interesting thing about drones is that they are actually more precise than many other weapons. They're more precise than a group of special forces. They're more precise than most bombs dropped from aircraft. They actually have a better effect, with respect to proportionality, than many others.The open question really is, and I think Daphne and I disagree, but we certainly agree on what the question is, are we in an armed conflict or are we not in an armed conflict?I think the way the administration has defined things is that they're saying we are only targeting groups that are in active hostilities against the United States, and that makes it an armed conflict.She also pointed out that if we're not, there's a lot of conversation...More than conversation, people developing international law. The reference she made was really to the Red Cross manual, the interpretive manual, that tries to figure out what you do when you're not actually in an armed conflict.The Red Cross has a view as to what "Imminence" means. But in today's world one of the interesting questions is, how long can you wait in order to stop someone? In the old days perhaps you could wait a long, long time until they, so to speak "Raised the battle ax at your head."But in this kind of world where you have people developing the bombs, bringing the bombs forward, thinking about the attempted shoe bomber and the like, perhaps the best way to deal with that person is before he gets on the airplane. Because if you have to wait until he gets in the airplane and tries to light the shoe, that may be a little late.My own view is that the administration hasn't gone there yet, haven't gotten to the "Imminence" question, because we are really focused on the issue of hostile groups who are actively trying to target the United States. Juan: [32:43] But you say there is a policy. Frank: [32:44] There is definitely a policy, yes sir. Juan: [32:46] But we don't know it. Frank: [32:48] No, I don't agree with that. I think between the president's speech, which was earlier this year, J. Johnson's speech, he was the general counsel of the Defense Department. This is before he became the head of the Department of Homeland Security.John Brennan's given a speech, Harold Koh has given a speech when he was the state legal adviser, and the Attorney General. There are five speeches out there that all lay out the policy, and I think the difference is not whether or not people think the administration has a policy.There is a distinction as to whether people agree with whether there's an armed conflict, point one, and point two, as John Bellinger was saying, should there be greater, I'll use the word "Transparency," if that's a word that John will agree to. That we ought to say more clearly what actually has happened. Not just what the policy is, but what we're actually doing.

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Juan: [33:42] Let's stay with the policy then, John, because despite all the speeches, if I asked anybody for a written document that would lay it out for me, can I get it? John: [33:52] Actually on that, pretty much yes, for the reasons that Frank has said. The administration, and in fact, I wrote an op-ed about three years ago, because I was concerned about what I saw happening here, called "Will Drone Strikes Become Obama's Guantanamo?" because I was concerned that this administration was falling into exactly the same trap as the Bush administration. Of relying, instead of detention but not telling people we were detaining, on killing people, but not telling people we were killing.They then did step up their game. They came up with a series of really good speeches, they're good speeches, that I wish we had as many good speeches like that in the Bush Administration that lay out the policy.What they don't do, though, is they still have not said who are we killing. They're basically saying to the rest of the world, "Trust us."I just want to be clear on exactly where I'm coming from, because I actually bet most of the people in this room would agree with this, and Frank would probably agree with this, is that I, having been the lead international lawyer for the United States, want the world to think we are complying with law.We are a country that believes in rule of law and international law. We wear the white hats, and we want people, even if we're doing edgy and controversial things, to believe that we're doing it legally and rightly.But if we're not, one, laying out precisely what the rules are that we're following, and then saying precisely what we're doing, but we're just saying, "Here's our general policy but trust us we're doing it right," then why is the rest of the world to believe that?I fought, when I was legal adviser, to be clearer on who we were detaining at Guantanamo, because much of the rest of the world was saying, "We just don't believe you're holding the worst of the worst."The same thing is happening here. The Obama administration is saying "Trust us, we're only killing the worst of the worst. We're not going to tell you who we're killing. We've killed 4,000 people, but we're not going to tell you who they are, but trust us because we're a bunch of good guys." I think that is a problem. Juan: [35:48] That's the transparency issue. Just quickly on the policy issue, there's nothing that the Congress has voted on? John: [35:55] No, that's true. As Frank mentioned, we are hanging all of our counter-terrorism operations, from detention to drone strikes to FISA, or at least a lot of electronic surveillance not under FISA, under this Authorization to Use Military Force Act. Which is about 75 words long, passed in September of 2001, which doesn't say anything about drones, or anything about detention, or anything about killing Americans.Many of us have long argued that that authorization ought to be revised so it's clearer on what it permits and what it doesn't permit. But as everyone in this room knows, Congress is in such gridlock that we can't even agree on a budget, much less a revision of the AUMF. Juan: [36:39] Daphne, you have people on the other side of you there who are arguing from the military efficiency point of view. Maybe they have some objections shared by John Bellinger about transparency.It seems to me nobody has any kind of code of conduct

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or a law approved by the United States Congress, and it seems to me that there are lots of people being killed who would be identified as innocents. Do you agree that the big problem is transparency, and not lack of policy? Daphne: [37:14] I think the first problem is transparency. I wouldn't say it's not lack of policy. I think it's not clear, despite what some of the panelists here have said, it's actually not clear that the United States is operating, or even saying that it's operating, under the laws of war.If you look at every one of those speeches where administration officials have talked about the drone war, it has talked about both laws of armed conflict and international human rights law. It talks about imminence, which is not required under the laws of armed conflict, but is required under international human rights law outside of the laws of armed conflict.They've intentionally conflated the two. In my view they've conflated the two because they know that some of the places that we're using drones, for example, parts of Yemen, when we're attacking a member of AQAP who is really not fighting the United States, it's very shaky ground whether or not that's an armed conflict that the United States is a party to.If the United States is a party to that armed conflict, it's on behalf of the Yemeni government. If that's the case, it should say so. But AQAP has not really been fighting the United States.I think the administration has very intentionally blurred those lines between armed conflict, and outside of armed conflict. I think that transparency, therefore, is the first point. I think the second point is more clearly, who are we killing, and why are we killing them? Who are each of these individuals? Juan: [38:39] Your transparency, it comes back to policy. It's not about how many we're killing and who we're killing. Daphne: [38:44] Well it's about both. It's about that, because frankly the American people can't tell whether the policy is right or not if they don't even know what the United States is doing. Juan: [38:53] By the way, do you two agree that the administration is blurring human rights and codes of military conduct here? Frank: [39:00] No, I don't agree. I think the administration's been about as clear as it could possibly be. The president is absolutely clear that we are at war with Al-Qaeda and the associated groups. He said that in his speech... Juan: [39:11] Well what happens when Daphne's situation comes up, though, with Al-Qaeda and the Arabian Peninsula? They're not attacking us. MG Marks: [39:17] Today. Frank: [39:21] First of all, in Yemen, to use that example, it's almost certainly clear that the Yemeni government has consented to all the activities that we're doing there. The issue of whether we can go into another country without their approval, for Yemen, I don't really think exists in any practical way.

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MG Marks: [39:40] My challenge is all this. I don't want this to sound too pedantic, and I've never been accused of that. We've lost the ability to get our arms around grand strategy, and I think that's what we're talking about. We were masters of it when the Soviet Union existed, and weren't we great grand strategists when we had a threat?The threat has morphed and changed, and is omnipresent in a whole bunch of different shapes. It has also demonstrated inclination to attack and do us harm. We've kind of lost the ability to get our arms around grand strategy, and from that, if you can articulate a grand strategy in a way that makes sense, from that you can derive what you're going to do about it.My point is, is when you don't know what the desired end state is, what the grand strategy is, you do what you want, and the ends justify the means, which is truly unfortunate.I think we're in a situation that's very slippery, because we haven't defined it. We talked about "Armed conflict." Who gives a shit...I'm sorry. [laughter] MG Marks: [40:49] We're in a continuous state of war. Family members are still getting shot at. It's personal for the McCains. I get very personal about this.I think we need to take a step back. We have to be very clear about transparency is essential, and as Daphne said, and I agree 100 percent, that's the first challenge. Challenge number two is, our administration cannot allow our president to be distant from these decisions. He's got to be front and center.I'm assuming procedurally it is, but it needs to be personal. It can't be somebody else's decision. We can't allow the world to assume that we have some automatons that are out there making decisions on how to pickle guys. That's a bad situation to be in. Juan: [41:38] Even by the standard you just set, and I'll ask Daphne to respond to this, people are not comfortable. When The New York Times reported that President Obama had a kill list, very personally involved, very specific about who he was targeting, Americans felt highly uncomfortable with this. MG Marks: [41:57] They should, as well the president should. Juan: [41:59] Wait a second. A moment ago you said "It's OK if it's personal and if it's specific, and the president's involved." That meets all those criteria. MG Marks: [42:07] Sure. He needs to be involved. He has to take the political risk for the use of this capability. That has to be front and center in our international partners, and the rest of the world has to understand it is personal. It needs to be personal. John: [42:26] He has not worked though, Juan, this again from a state department perspective, and you can see how each of us has a slightly different perspective here. The administration giving all these good speeches at home, but its interesting, almost as if they're preaching to people at home, but they've not worked with the rest of the world.To my knowledge, and there may be some people who disagree, but we do not see the Obama Administration working hard to convince our allies, people who would be inclined to support us, that we're doing the right thing.We don't see the Brits or the Germans or the Dutch or the Danes or the Australians standing up and saying, "We've

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been fully briefed by the administration. We think that what they're doing is right, they're killing the right people, the rules are right."This was a mistake we made in the Bush Administration, by thinking that we were doing the right thing and that the rest of the world would just sort of fall in line. The Obama Administration came in with a slightly different view. It's thinking, "We're extremely virtuous, everybody in the world will love us, so we don't have to go and convince them."With this drone program, they're finding that it's very controversial. They've giving a series of good speeches at home, but the rest of the world is not reading these speeches and saying, "We're convinced." That's a dangerous spot for the United States to be in.I think in the second term here, the Obama Administration needs to work a lot harder to convince the rest of the world that they're doing the right thing, following the rules, that the policy is right, and that they are following clear legal rules.Daphne's point is also an excellent one, is, "What's sauce for the goose is sauce for the gander." If we don't define clear legal rules, then China or Russia will whack someone with a drone and use the United States' own legal rationale to justify it. Juan: [44:06] Does anybody else do it, John? John: [44:09] We haven't seen it yet. I think it's only a matter of time. We saw some press reports a year ago that the Chinese were going to take a hit at a drug lord somewhere.I could certainly see the Russians going after some Chechens and then using our legal rationale the same way, "We're only going after terrorists who pose an imminent threat against us." I would hate to be the state department spokesman getting to stand up and say, why, "That's a bad drone strike, but the United States only engages in good drone strikes." Juan: [44:39] Daphne, I think I disagree with John on this point. John's talked about the failure to address the world, but I think the most critical audience for the administration is here at home.In terms of American values and principles, and how we conduct ourselves, and how we think about ourselves as a democracy. A democracy that operates with full cognizance of human rights. It seems to me that case, as much as he may have tried to make it, I'm not sure that the president's made the case. Do you buy the case at this point? Daphne: [45:14] You mean made the case to the American people? Juan: [45:16] Yeah, to you. Daphne: [45:18] As I said, I don't buy that...No, I don't think he's been very convincing, and I would go back to the idea that he's not convincing because he's not clear.I think part of the reason he's not convincing to our allies, and I agree with John that it's important, because terrorism is a global thing. We depend a lot of cooperation from our allies. He's not been very convincing because they don't agree, as John mentioned earlier, that we're in a global war.In fact, President Obama does not agree with Spider's idea that this is a perpetual war, that will be ongoing indefinitely. President Obama has repeatedly said there will be an end to this war. As we withdraw troops from Afghanistan, that end comes

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nearer.I don't think the American people want to be in a perpetual war. I don't think that that is what American democracy is about.I think polls show recently that actually Americans are increasingly isolationists, they don't want to be involved in armed conflict, it's extremely costly. They think we should be focusing on the issues here at home. I think the Obama Administration cannot credibly make the argument that we are in a perpetual ongoing war, and this is just the new normal.That's why I think it has been learning these lines, but I also think it's why our allies will never agree that we are in a global armed conflict, and that the breadth that we're using these drones in, that the extent that we're using them, is permissible.It's one thing to use them in very narrow, targeted circumstances, when there's clearly an imminent threat. Someone is boarding a plane that you know has a shoe bomb, no question.But when you're talking about outside of an armed conflict, there shouldn't be collateral damage. Civilians are killed in armed conflict, but they're not killed by police officers. That's a very rare thing, for a police office to use lethal force is a very extreme example. That's comparable to the US using military force outside of an armed conflict. You don't want them killing a lot of civilians, or any at all really.Yes, drones are a permissible tool, but only in a very narrow circumscribed way. Especially as we end this armed conflict as we withdraw our troops from Afghanistan, I think the American people and President Obama really want to end the war and use drones only when absolutely necessary after that. Juan: [47:36] Let me turn the tables on you and say, let's say he sent in a special forces team. I bet they'd kill a lot of people. Daphne: [47:46] Possibly. It depends, right? If you're going to send in a special forces team, the military has decided this is extremely important, this is Osama Bin Laden or this is someone who... Juan: [47:56] OK, that's a bad example. Daphne: [47:58] But it's not a bad example. Juan: [47:59] They're combat troops on the ground, instead of drones in the air. Combat troops come upon someone that they designate to be an enemy, and they go after that person. They're going to kill the driver, they're going to kill the cook, they're going to kill the family, potentially. Wouldn't you agree? Daphne: [48:15] You have combat troops in a zone of armed conflict, and therefore if you're in an armed conflict some civilian casualties happen. It's acceptable if the target is sufficiently important. But if you don't have combat troops, you've decided that you're, not necessarily but more likely, you've decided that you're not in an armed conflict in that place. You're not willing to risk your own troops, it's not that important to you.Drones create the risk that you will expand this war to anywhere you feel like getting some guy that you think is a bad guy, or that you've been telling people is a bad guy, but you're not willing to risk your own troops. You're not willing to engage in an armed conflict there.That's why international law treats "Outside of armed conflict" differently and says

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that you can only use lethal force under very narrow circumstances. You can't just because you decide he's a bad guy go send a missile to get him. Frank: [49:06] Can I jump in on this? Because there's a point that Daphne's implicitly saying, which is that we need to take risk in order to attack our enemies. Juan: [49:17] To justify killing the enemy. John: [49:19] There's always a risk/reward calculation. Frank: [49:21] Just bear with me. The point that one famous general made is that the object is not to die for your country, the object is to make the other guy die for his country. If we can do what we need to do without getting causalities, that is not a reason not to do it.I don't agree at all that you can't be in armed conflict and yet have overwhelming dominance with the weaponry, the technology that this gives us.The second point I think I would make... Juan: [49:48] Hang on, let Daphne respond. Daphne: [49:51] I wasn't suggesting that we shouldn't have dominance, or that you have to risk your own troops, but I'm saying if we've made the calculation that it's not an important enough target to send in our own troops, it's an indication that we should think twice before using an unmanned aerial vehicle that doesn't risk our own troops.I'm not saying that you must risk your troops, only that drone technology makes it very easy to engage in war without risk to your own troops, and therefore perhaps too easy to engage in war. Juan: [50:21] Spider, did you want to jump in there? MG Marks: [50:23] The discussion of risk and reward is the centerpiece calculus when decisions are made like this, and the drones certainly, completely agree, Daphne, gives you capability, but you still have to meet the same criteria.I would argue that our priority, the decision to use a drone or to use, as Frank suggested, and you did, Juan, that you send a 12-man team in there to go do the same job, you always work the risk/reward. If it's a drone, you go through the same disciplined process in order to reach that decision, whether you use a drone or you use... Juan: [50:57] Wait a second, that doesn't make sense to me. There's no risk to you if you use a drone. MG Marks: [51:01] Of course there is. The risk/reward is, I've got a target I want to do something with. We all agree, whoever we are, we all agree that this guy, this person, is on a list for a particular reason. There's something we want to do with that individual.If there is no risk associated with the use of a drone, other than the loss of technology, there is no personal risk to us. Does that change the way we feel about this individual? Answer me that. No. We've all determined that this individual needs to go away.

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Daphne: [51:36] I don't think we've all determined. I think that's where... [crosstalk] MG Marks: [51:38] My point being is, if I'm not going to use a drone, has it changed the determination on what this guy's status is? [crosstalk] Juan: [51:47] Just wait. Just let me clarify what you're saying. You're saying, if we didn't have the drone, would we send troops in to get this individual? The answer has to be "Yes" before you use the drone. MG Marks: [51:59] Before you use the drone? Juan: [52:00] Is that what you're saying? MG Marks: [52:00] Not at all. What I'm saying is, we've made a determination that this individual, based on what he or she has done, is on a list. That person needs to go away. What is available for us to go accomplish that task? That's where I am right now in the debate. Boom.What's the decision? Do we put people in there to do it? Do we drop a bomb on them? Do we send a drone in there? Do we go do a candy gram from Mongo, walk him away when he foolishly opens the door? [laughter] MG Marks: [52:29] That's where we are. We're making a decision. We've got a bunch of capabilities. Pull it out of the kit bag. "I think I'll do this." Juan: [52:34] No, but what I'm saying to you is that a drone, and this is a little bit of a distortion, but basically Daphne's saying, it's the choice of weapon for someone who doesn't want to put themselves at personal risk. Someone who says, "It doesn't cost me anything. I'm going to throw a drone up there and have the drone do the job."That, Daphne argues, then leads you into actions that you might not take if you had your personnel at risk. MG Marks: [53:02] You put words in her mouth. Juan: [53:04] That's my job, I'm a journalist. [laughter] Juan: [53:11] Was I totally distorting? Daphne: [53:13] No, you were not totally distorting. I think it does raise that question. I think where we disagree is, should there be a standing list of people we just want to take out? We're not supposed to be killing people for something that we think they've done. We're supposed to be killing them because they pose a risk to our troops, or to the United States.That's very different, and at different times somebody might pose risk or might not pose a risk. A standing kill list suggests that we have this constant list of people because at some point they did something that might harm us, and maybe they will in the future, but we don't really know, so we're going to take them out as a precautionary measure.It's too easy to do that with a drone when we don't risk our own troops. Again, I'm not saying we should risk our own troops, but maybe we shouldn't be having the standing kill list.

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Juan: [53:59] John, before we go to the audience, did you want to jump in on this? John: [54:02] I will just say that there are other risks here. Some of these we just saw last week. The good thing about a drone is you really can target the particular individual.The Obama administration has said, particularly after the president's speech, that henceforth, at least in areas of non-active hostilities, that they will only use a drone if the chance of killing a civilian are close to zero. Which actually, I think would make the military extremely worried, if you're now accepting no collateral damage.In fact, there is a lot of collateral damage. It's debated, because again, we don't know what's going on, but there may be hundreds, perhaps thousands of civilian casualties. Just last week, in the midst of this controversy over signing an agreement in Afghanistan where we're trying to get Karzai to sign it, a drone strike in Afghanistan kills a child.There is indisputable collateral damage. The risk has ended up being there that it has derailed, and maybe just yet another excuse to derail, the agreement with Karzai. The point overall is that our drone strikes, and of course, in any kind of a war, there is collateral damage, but this is causing harm to us around the world and harm to our reputation and commitment to rule of law. Juan: [55:25] Now we have time for three or four questions. Do we have a microphone? OK, there's the microphone. Here's a question right here. Noreen Chow: [55:35] Hi, I'm Noreen Chow with Amnesty International. Thanks so much for this great discussion. John, you just mentioned that a toddler was allegedly killed in a drone strike recently.Why is it that the US government, in the case of Afghanistan, is willing to issue an apology, investigate that case, but in the case of a killing that Amnesty International documented, the killing of a grandmother named Mamana Bibi, the US government has been completely silent about what happened in this case?Why is there a double standard? Is it actually a morally or legally justifiable double standard about that kind of secrecy? Thanks. John: [56:08] It's a good question. In this case, I actually will defend the US government, even though I've been slightly critical of the Obama administration here.This is where Daphne and I will disagree with each other. I do believe we are in an armed conflict with Al Qaeda. This is where I disagree with human rights groups. I think we are in an armed conflict with Al Qaeda that is going on around the world.In an armed conflict, you don't have to apologize for every single civilian who has been killed. It is an unfortunate thing, and generally, our military will express regret. None of us want civilians to be killed.But we are not in a situation, I think it is only if you apply a human rights norm where you say, "No civilians may ever be killed and therefore, if we kill a civilian we have to apologize for every single one of them." That's not where I am.I think you make a good point of, why are we apologizing for some but not others? I think the answer is, the administration saw that this would so derail the deal with Karzai that they had to apologize. Juan: [57:15] Daphne, did you want to add anything?

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Daphne: [57:17] No, I agree that that's probably why it is. Juan: [57:21] OK, so let's go to that side of the room. Randy Scheunemann: [57:26] Randy Scheunemann, foreign policy consultant based in Washington. A question for each side.Spider and Frank, ambassador Volker said in the introduction there was a tactical question about whether we're actually creating more Islamic radicalism using drones. I would argue that's a strategic question.There have been many anecdotal cases of a drone strike hitting a village and then turning an entire village that wasn't otherwise predisposed to Al-Qaeda and its affiliates turning towards Al-Qaeda and its affiliates. How do you do the strategic cost benefit analysis? To John and Daphne... Juan: [58:00] Well hang on, hang on. We'll do one at a time. Frank: [58:04] Let me take it on. First of all, I don't think drones in this case are any different than any other use of military force.That is to say, if it had been a special forces team, if it had been mortars, if it had been air-to-ground missiles causing this same impact, you would have had, you're always going to have negativity when people are killed, wounded, badly hurt, and then the survivors don't like it. It's not a good thing and it's not a surprise.The question, I think, is when you're doing this kind of thing, and again that's why I like your formulation. I don't like the words "Collateral damage," because it makes it not clear what we're talking about.This is one of the risks, if you will, one of the evaluations the policymakers have to make, and give enough guidance to the military people who are targeting so they can make it on the particular case. Because you don't want to generate a greater set of problems than the effectiveness, the benefits which you've gotten.Having said that, there is no war whatsoever in which you don't have negativity from the use of force. It just is a bad thing to go to war in general. It may be the least worst thing, but it's not good. Because you are going to have negative consequences.With respect to the overall point about creating more, if you will, terrorists or people opposed to the United States. My own view, and this is obviously subject to debate, is on the one hand there is a significant ideology, if you want it to call it the Al-Qaeda ideology, that has a lot of resonance in parts of the world. That's a major factor with respect to why people oppose the United States.The issues, of course, can be exacerbated, as you pointed out. Take a look at the Osama bin Laden. When we sent the special forces team in, you've got the same extremely negative view in Pakistan. I don't distinguish drones from other types of force. Juan: [60:05] Your second question? Randy: [60:07] To John and Daphne, there are some that argue the Obama administration's increased use of drones isn't simply due to risk aversion. It's because of all the complications of what happens when you actually capture a terrorist. All those messy issues of detention. In other words, they'd rather kill them with a Predator than have them in Guantanamo.

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John: [60:27] I personally think that that has got to be true. They looked at what happened to us in the Bush administration with detention and said, "No way is that going to happen to us."But at the same time, they are served up, and this is the difficult thing when you're in the White House and your intelligence agencies are telling you, "You've got all of these terrorists out there who are going to pose terrible attacks against the United States."You can't do nothing. You then can't capture them. You can't send in the special forces. But you've got this nifty tool of using drones. I think the president has in fact been backed into a corner here, which is why he's been so heavily reliant on drone strikes. But I think they did look at what happened to us with detentions, and we just don't want to be detaining any more people unless it's very simple to do so. Daphne: [61:18] I would like to respond to that. I see it a bit differently. The administration has said is, "These are people we cannot capture." That's an open question. It would be nice to have more information about how they make that decision.In fact, if they did capture them they could transfer them to the United States for trial. They've had several examples.You've had [indecipherable 1:01:37] who was questioned on a military ship, and eventually transferred to the United States. There have been something like 56 suspected terrorists captured abroad, transferred to the United States who stood trial, who were brought to US federal courts, since 2001.There actually is a process for doing that. I think that tends to be an excuse that people use to criticize the administration. I don't actually think that that's...Perhaps it's what they're doing, but that doesn't seem to me to be the calculus.I think what's really going on is, again, this risk question. It's much easier to not risk our own troops and say, "This is somebody who might harm us, so let's take him out," when maybe we shouldn't be taking him out. Maybe there are other ways of dealing with that risk. MG Marks: [62:23] I don't think there can be a presumption that these are all criminals that need to stand trial. Daphne: [62:27] No, they might not be criminals, and they might not present a risk, either. That's why, partly, we just need more information about who they're killing. If they're criminals and committed a crime, then they should be brought for trial. They shouldn't be killed. MG Marks: [62:40] I think there's...Just to finish up on one final thought, and I appreciate your question. I think we've given our enemies enough reasons to dislike us, so if we kill a bunch of them with some drones and we recruit more and you [indecipherable 1:02:53] that's unfortunate.There is a legitimate downside to that but there is...I don't know. To Frank's point. There are sufficient reasons in the use of force that you're going to have a cascading effect of negativity that comes from that. Juan: [63:10] On this side, we have a question here. I don't see the microphone. Oh, go right ahead.

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Nicole: [63:17] Hi. My name is Nicole and I'm actually asking a question on behalf of our next generation leader, Zaheer Abbas. He's from Pakistan. He wrote in and asked, "Contrary to the anti-drone propaganda in media, a significant number of the people of Waziristan, analysts, political and human right activists are in favor of drone strikes as its targets have always been terrorists and their local facilitators."In lieu of these ground realities, and pressure from Pakistani government to stop, what could be the United States' commitment and possible action to continue with these strikes beyond 2014?" Juan: [63:53] Who do you want to answer that question? Nicole: [63:57] I do not know. It's a general question. Juan: [63:59] It sounds like somebody who would speak for the administration, right? Nicole: [64:04] Probably, yeah. So we could go to the right. Juan: [64:07] But I don't know that any of them is really in position to speak for the administration, but you would speak to the policy angle. Do you believe that the administration should be doing that? Frank: [64:18] If I understood the question, after 2014? Juan: [64:21] Yep. Frank: [64:22] I think that's going to be a very open question. I think it will depend, in part...It goes to this issue, again, of are we in active conflict?If the United States maintains forces in Afghanistan with the consent of the Afghan government, a question that's open at this point. If those forces are engaged in combat, and you still have forces coming across the border from Pakistan, which I think is pretty clear that we have had up until now. Then I think going against those forces with drones or other means, also, will continue to be appropriate.If, on the other hand, we're out of Afghanistan then I think it becomes a lot more complicated because it's an open question as to whether or not those forces in Waziristan or otherwise are actually targeting the United States. That would be an open question. Juan: [65:16] We have time for a few more. Let's go to the middle. Dixon Osburn: [65:26] Thank you all for a very informative, provocative panel. Dixon Osburn, with Human Rights First. I have a question for General Marks, but for anybody on the panel.I really wanted to get clarity on your view about being in a continual armed conflict against Al Qaeda. There are Al Qaeda affiliates in Libya, Algeria, Mali, Morocco, Syria, Iraq. You can go on and list a number of countries.Is it your view that the United States can use lethal force in all of those countries right now? If not, how would you circumscribe that?

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MG Marks: [66:05] Your question really gets to the legal issue of the application of force, wherever it is. My view of the continuous state of warfare is that it really is irrespective of boundary. You described every one of these affiliates geographically. That's not relevant in my mind.The key thing is what intelligence can you derive? What are your means of intelligence? So that you can more precisely understand capabilities and intentions. That equals the threat, irrespective of where it is. Juan: [66:40] Oh, come on. Wait, wait. Hold on a second. But you wouldn't do that in the United States. MG Marks: [66:43] Say again? Juan: [66:44] You wouldn't do that in the United States. MG Marks: [66:47] I'm not suggesting...Well, there could be a challenging... [crosstalk] Juan: [66:50] Would you do it if it was on German territory, or British territory? I don't think so. MG Marks: [66:55] Determine intent, and capabilities? Juan: [66:57] Yeah. You say there's a bad guy there and the United States government's going to send a drone to kill him. MG Marks: [67:02] Juan, you must be smoking dope. You have no clue... Juan: [67:04] I'm not at this moment. I'm just telling you, I don't believe... [laughter] MG Marks: [67:10] I have no clue where that came from. That's like...Where did you get that? Juan: [67:15] You said "Without regard to boundaries." I don't believe that we would violate German sovereignty and say, "Oh, you know what? We feel that there's a bad guy and we're going to kill him." MG Marks: [67:23] I'll answer your question in a second. Juan: [67:24] Please, go ahead. I just don't believe that we're going to violate German sovereignty and say, "We have the right to do this." MG Marks: [67:29] We're not going to. We're not going to. For clarification, the intelligence that we want to derive gives you an understanding of intent and capability. That's what I was trying to say. Maybe not artfully. Juan: [67:44] Pedantically. [laughter]

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MG Marks: [67:46] We need to better understand them. Having spent my life as an intel guy, in the intel exchange business in Germany, we went after a lot of bad guys. Juan: [67:55] But you had the permission... MG Marks: [67:57] When I say "We," it was in partnership with the BMD and a number of other organizations, where we were able to build incredibly precise target folders. We, collectively. We'd go to the Germans and say, "What do you intend to do about this?" They said, "We have it from here."That's the point I'm trying to make. It's an aggressive intelligence collection capability in partnership, where you can achieve those partnerships, so you have a better understanding of what the threat looks like. Then you get into the discussion of, "What are you going to do about it?"Intelligence is not a passive sport. It's active. Intelligence, and what are you going to do about it? That's where we are right now. We're on that boundary. What are we going to do about it? Juan: [68:38] I'm very dubious about that one.We have time for just two more questions here. Steve: [68:48] Thank you. My name's Steve. I work and study here in the city. Thanks, Juan. Much obliged, and to the panelists.Mr. Bellinger and General, sir. We have a common bond in Charlottesville. I was there for undergrad. You guys were there in grad school. One of the names that comes quickest to mind is Ken Thompson. The late, great Ken Thompson. John Bellinger III: [69:08] Ad, Todd [indecipherable 01:09:04] . He just died this year. MG Marks: [69:09] He just died this year. Steve: [69:10] One of the things that he impressed upon us was the business of politics among nations and statecraft, and Hugo Grotius was right there in it. I put to you guys, what would Grotius do or think about the use of unmanned aerial vehicles? That's one question of three. Please, let me just throw these out. Juan: [69:28] No no, don't do that, because we all get confused and we only have so much time. Let's answer that question. John: [69:35] Grotius, of course, is one of the fathers of international law, and so a lot of this debate really is about what is permissible under international law. That's really what this whole debate is about. A lot of it is, is this permissible under international law? Then of course, is it bad policy to be killing people all around the world?I do believe that it is permissible, and I think taking principles from Grotius that a country may use force in another country to defend itself, particularly if the other country has consented, so that when they were not actually violating the sovereignty of those countries. There's been a debate about that. But assuming that Pakistan and Yemen and Somalia have all consented, then we're not violating the sovereignty of those countries, which would be the principle thing Grotius would have been concerned about.Then your next question, which he wasn't

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as concerned about at the time, is are we violating the human rights of people in those countries? Steve: [70:33] Hot pursuit was one of the things that came to mind. John: [70:36] Here we're got people who pose an imminent threat against us, or they are part of an enemy army who overall we are at war with.Daphne's right that the administration has been a bit muddled on...They're really trying to ride two horses at the same time and say, "We're in a war with Al-Qaeda, but for those of you all who don't agree with that, then we're also trying to kill people individually because they pose an imminent threat against us."This is back to my mantra, is that although I'm actually personally convinced that as a general international law framework, the United States can generally do what we're doing. Most of the rest of the world does not agree with us, and that's really not a good place for the United States to be. Juan: [71:22] Here is the question. Male Audience Member: [71:28] Thank you. My name is [indecipherable 01:11:29] Hashimi. My question is, when the US government sends a drone to, say, Yemen to kill someone who the US government determines is a terrorist, we cheer. When they're suspects we say, "They should have not been killed." Or when they're civilians, we say we don't even feel sorry to, as he was saying, to even feel that need to say sorry or apologize for it.When there is a US citizen who gets killed like Anwar al-Awlaki, who was killed in 2011, there is an outcry. Even though he was threatening the United States and its citizens. Just because he was a US citizen, we say we should have not killed that person. Why is there this double standard when it comes to terrorism? US citizens who are citizens of other countries. Juan: [72:26] You can't certainly say that person, a person has rights as a US citizen and you would have the US government attacking its own citizens, which is in direct violation of our constitution. Wouldn't you agree, or are you going to insult me again? MG Marks: [faux-plaintive] Juan... [laughter] [72:40] Juan: [72:43] No, but I mean this is why I was questioning your boundaries. MG Marks: [72:46] You get insulted by O'Reilly every night. [laughter] Juan: [72:49] Believe me, I know. I'm saying I don't see the US government attacking American citizens, or using drones to attack somebody they suspect of terrorist involvement in Chicago. I just don't see it. MG Marks: [73:04] I concur! Frank: [73:04] The president said...Right. That that would not occur. Attacking US citizens abroad has raised a lot of issues. The fundamental difference was, if the citizen is

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involved in active hostilities against the US, and there's due process.An open question is what the nature of the due process would be. Some people argue it should be a judicial type of due process. The administration's view is due process does not require judicial due process, it requires careful evaluation.But certainly it's not a surprise that for the US to focus on its own citizens, because our constitution gives our citizens rights. It doesn't mean that the value of a US person's life is any different than the value of another person's life. The value of lives are equal. It's just the way the constitution works. Daphne: [73:54] I just want to say, I do think, though, that that's US politics, and that that is why, what we heard about was the concern about US citizens.It's not because it's more lawful to kill non-US citizens. It's not, it's just that that's US politics, and so that became something that US politicians were comfortable talking about and protesting. Whereas generally, we're not, as a public, as concerned with the rights of foreign citizens. Frank: [74:21] I think it's a legit, I know exactly what you're saying. There was a hearing earlier this year which I testified on, the House Judiciary Committee focused only on killings of American citizens.Although we do have this extra layer of constitutional issues that we do have to discuss, which are legitimate issues, and Juan, it is permissible under the constitution. If an American went and joined the German army during World War Two... Juan: [74:43] Then I guess he would have forsaken his American citizenship. John: [74:46] Well, it's what happened to al-Awlaki. Your point, I understand, which is we shouldn't only be focused on American citizens. I actually said this at the hearing is, we have 3,000 or 4,000 other people who've been killed.Congress ought to be at least, as a matter of oversight, looking at, what is our overall policy with respect to these other people? What is the overall legality with respect to the other people?I actually felt that that was a little bit parochial for after 12 years of drone strikes, and 5 years of the Obama Administration, to finally have a hearing when 1 American is killed. I thought that was...You make a fair point. Juan: [75:23] Not to my mind, but OK. [laughter] Juan: [75:26] I think killing Americans is, that the idea that the United States government would go after us, its citizens, doesn't strike you as different? John: [75:34] No no no, I think it's perfectly legitimate to have a hearing on that subject, but not to the exclusion of drone strikes to the rest of the world. Juan: [75:42] Right. I think for someone who's not an American citizen, or looking at it from the outside world, which is your earlier point, it would strike them as hypocritical. But I don't think it strikes an American... [crosstalk] John: [75:50] Which I think was the questioner's point.

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Juan: [75:52] We're going to stop here, but everyone's going to be here afterwards. We're going to have a reception. Ambassador Volker, do you want to explain? Kurt: [76:00] Sure. Thank you very much, Juan. Juan: [76:01] Well let me just say thank you, first of all. John Bellinger, Daphne Eviatar, Frank Kramer, and Spider Marks. Thank you all very much. Kurt: [76:09] Thank you very much. We have a wonderful moderator in Juan Williams. Let me just say thank you again. [applause] Kurt: [76:18] Before we let you go, I found this one of the most stimulating discussions of drone policy that I've heard in Washington. I want to know, do you share that assessment as well? [applause] Kurt: [76:32] That's what we aim to do with these debates, and I want to thank each of our participants here. I want to go down the line one by one, one sentence. What should the US government do now, whether it's the same thing or differently, what's your recommendation? Spider. MG Marks: [76:50] The United States needs to enhance its transparency, to John's point, in terms of how it's going to use drones, but should not shy away from using it as a capability of choice. Kurt: [77:05] Frank. Frank: [77:07] Despite the congressional dysfunction, I really do think we ought to have a new statute that gives much greater clarity to what can and should be done. Kurt: [77:18] Daphne. Daphne: [77:19] I think the administration should follow through on its promises of transparency. It should be clear about what legal framework it's operating under, who it's targeting, why it's targeting that individual, who it has actually killed, and what was the legal justification for killing those people. Kurt: [77:35] And John. John: [77:36] This is going to be terrible, because this is just what you didn't want to have happen. I think the administration should identify the top 50 people by name who they've killed and why, what they had done, at least 50, and should work much more carefully with our allies, at least to try to get agreement on the legal framework for the use of drones. Kurt: [77:59] Very good. Thank you very much to all of our debaters. Thank you to you. Thank you Mrs. McCain for being here tonight. [applause]

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Transcription by CastingWords