most informed observers would agree, i think, that as a result of our government's counter- terrorism efforts spanning the bush and obama administrations and which i have included -- have included targeted force against known individuals, the u.s. is safer today from a terrorist attack from al qaeda overseas. some would say if would saybroke, don't fix it.

the problem is the american public is suspicious of executive power shrouded in secrecy, in absence of an official picture of what our government is doing and by what authority, many in the public to avoid by envisioning the worst. they see dark images of civilian and military national security personnel in the basement of the white house judge,as prosecutor, jury, and executioner. going down a list of americans, deciding for,who shall live and who shall die, pursuant to a process and by standards no one understands. our government, in speeches given by the attorney general, john brennan, can myself, makes official disclosures of large amounts of information about its efforts and the legal basis for those efforts, but it is never enough because the public does not know what it does not know

what it knows there are things the government is still withholding from them. the revelation 11 days ago that the executive branch does not claim the authority to kill an american noncombatant, something that was not and should never be an issue is big news and trumpeted as a major victory for congressional oversight. a central filibusters' the government's secrecy is compared to jimmy stewart. at the same time, through a continual unauthorized leaks, our government looks to the american public as undisciplined and hypocritical. one federal court has characterized the government's position as alice and wonderland, while another this past friday refers to it as "and ideological or plausible." anonymous and classified white paper leaked to nbc news

prompted more questions than it answered. our government finds itself in a losing proposition. it fails to officially confirm many of the counter-terrorism successes and fails to officially confirm, deny, or clarify the unsubstantiated reports of civilian casualties. our government's efforts before the safety of the people risk an erosion of support by the people. it is in this atmosphere that the idea of a national security court as the solution to the problem, an idea that for a long time existed only on the margins of the debate about u.s. counter-terrorism policy, but is now entertained by more mainstream figures such as senator dianne feinstein and my former client robert gates, are gaining momentum. to be sure, and national security court, composed of a

bipartisan group of federal judges with life tenure to approve targeted lethal force would bring some added level of credibility, independence, and rigor to the process. those are worthy goals. in the eyes of the american arelic, the judge's respected for their independence. in the eyes of the international community, a crisis that is becoming increasingly controversial will be placed on a more credible footing. a national security courts would also help answer the question many are asking -- what do we say to other nations who acquired the capability? a group of judges to approve targeted lethal force would set a standard and an example. targeted killings, as they become more controversial with time, i believe there are some decisionmakers within the executive branch who would not

mind the added comfort of judicial input on their decisions. but we must be realistic about the degree of added credibility such a court can provide. its proceedings would necessarily be in exports day almost all theand government applications would be granted. the government would be sure to present a compelling case. at the same time the new york times editorial prshows lethal force, it also shows a rubber-stamp because it almost never reject an application. how long before a drone court operating in secret is criticized in the same way? meanwhile, what about the views of the judiciary? a number of federal judges would accept this unpleasant job as a

sense of duty. but many of what the judiciary to have nothing to do with it. former judges have publicly articulated this view in emphatic terms. i could hear many in the judicial branches saying courts exist to resolve cases and controversies between parties, not to issue a death warrant based on classified ex parte submissions. judge is not like arm's-length submissions because they know they are not getting the two side of the story. i'm sure they would like them even less if the decision they must make its final and irreversible. in a more cynical way, i can imagine many federal judges thinking "we don't exist to provide top cover to the executive branch for difficult decisions. but this responsibility on us and you will diminish both branches." the advisability of a national

security court depends in very large part on the scope of what it is the court will review and approve. i suspect the constitutionality of such a court depends on that as well. here are the three issues, although there are more. first, a court to review and approve all targeted lethal force by the u.s. government away from any so-called high battlefields, against terrorists, including the in the course of a congressionally authorized armed conflict conducted by the u.s. military. second, a court to review and approve targeted lethal force by the u.s. government away from the hot battlefield but only against a terrorist who is also a u.s. citizen, including in the course of a congressionally authorized armed conflict conducted by the u.s. military. 3, a court to review and approve targeted lethal force by the

u.s. government away from a heart battlefield against terrorist who is a u.s. citizen but only in instances not part of a congressionally authorized armed conflict conducted by the u.s. military. logistically, if this court's proposed jurisdiction is limited to u.s. citizens, applications should be very rare, hopefully not even 1 per year, it is also the case that as a result of eisa, article three judges can receive highly sensitive information. in d.c., infrastructure for doing this already exists. but limiting the court's jurisdiction to u.s. citizens leads to the inevitable question from other nations, "wise to our citizens deserve less from your government?" on the other hand, if the

proposal is to include all targeted lethal force off the hot battlefield, that's a different matter. in that event, in the current world environment, the judge will have supplanted the senior legal officials of the national security agency from a large part of his or her job. to do that consciously and effectively, when a judge or another on this court should consider getting an office in the pentagon or other agency and plan on spending a lot of time there. be continually available, ever vigilant, and have around the elock access to secur communications, counter- terrorism personnel, and executive branch lawyers to your presentations, receive intelligence, probing intelligence officers for weakness in the intelligence, and ask lots of questions. this is not something to be done on the papers. next, if the court's jurisdiction is limited to u.s.

citizens, there's the question of exactly what the court is to decide. if one accepts the criteria for targeting a u.s. citizen set forth in the attorney general speech a year ago, it has several parts. first, the target is a senior operational leader of al qaeda or associated forces " who actively engaged in planning to kill americans. second, the individual poses an imminent threat to the united states. third, capture is not feasible. fourth, the operation would be conducted in a manner consistent with applicable law of war principles. starting with the last of these criteria, this one is implicit in every military operation. this includes consideration of the type of weapon used and the elimination or minimization of collateral damage. often these matters are and should be left to the discretion

of the military commander in direct control of the operation along with the time, place, and matter of the operation. even if the overall approval of the operation comes from the president or secretary of defense, this particular aspect is not something we should normally seek to micromanaged from washington. likewise, there's also not much to be gained by having a federal judge to try to review these details in advance. next, there are the questions of capture andof eminence. these really are up-to-the- minute real-time assessments of when it comesad to "courts being unequipped to assess the nature of battlefield decisions." indeed, i have seen feasibility of capture of a particular objective changed several times in one night, nor are these

questions ones of a legal nature. judges are accustomed to making legal determinations based on a defined set of facts, a picture than has already been painted, not a moving target, which is what we are talking about here. these are not one-time only judgments. we want military and national security officials to continually assess and reassess these two questions. that's up until the last minute before an operation. if these types of continual reassessments must be submitted for evaluation, i believed we compromise our government's ability to conduct these operations effectively. the cost will outweigh the benefits. in that event, i believe we will also discourage the type of continual re-evaluation i am referring ticket. that leaves the question of whether the objective is a

senior leader of al qaeda plotting to kill americans. , thisse i have identified one is the simplest and most straightforward, but it's the only ones that could be referred to a court. but it's not a question unique to u.s. citizens. whether an objective is a combatant and part of a congressionally declared enemy is a question we should ask in every instance. is it therefore worth submitting to a court? like considerations, many to draw distinctions between on and off and hot battlefields. the distinction in my view is becoming increasingly stale. on the one high battlefield left since 2001, afghanistan, the u.s. is winding down operations, while al qaeda has migrated to yemen and north africa. i envision a lot of debate and uncertainty about what

constitutes a heart battlefield. is it u.s. boots on the ground? if so, how many? why should that be the test? what about the libya in 2011? the distinction made sense for developing policy, but i caution against the development of different legal regimes and standards on that basis. phrase "drawn corp. "is a catchy phrase that fits on a bumper sticker, but it is a conceptual misnomer. the activity we are talking about is not limited to unmanned aerial vehicles. targeted lethal force can be and is lethalfrom several other types of platforms, including manned aircraft. then there are the constitutional issues. this depends in large part on the scope of what we are considering. theree with the profs on subject. article two of the constitution

states that the president shall be the commander-in-chief of the armed forces. this is his burden and responsibility. he may delegate it within his own chain of command, and he cannot assign part of it away to another branch of government nor have it taken away by an act of congress. are justle 3 problems as serious. the judiciary does not exist to issue advisory opinions or offer legal advice to president. they exist to resolve alive cases or controversies. many refer to the court by intelligent to say that it does not resolve cases or controversies between parties. it also authorizes surveillance based on classified submissions. but this traditional activity has its roots in the warrant requirement of the fourth amendment. what the judge is doing is an extension of what judges do everyday in the domestic law

enforcement context when they issue a search warrant. the idea of judicial authorization of lethal force against an enemy combatants, particularly during an armed conflict, has no similar roots in any activity typically performed by the judiciary. to the contrary, the idea is motivated by a desire to rein in the president's constitutional authority to engage in armed conflict and protect the nation, which is the very reason it has constitutional problems. next, any requirement to submit certain objectives to a national security court must contain exceptions for the executive branch to act on its own in eckington circumstances. ? is it ? also, beware of creating the ron paul set of incentives for those wrong set of

incentives for those who must conduct the operations. it may include a location like a terrorist training camp or an object like a truck filled with explosives. by creating a separate legal regime with additional requirements for an objective if his name or citizenship becomes known, what disincentives do we create for operator to know for certain the identity of those likely to be present at a terrorist training camp or behind the wheel of a truck bomb? or must the government refrain from an attack on what itbeen an active and dangerous training camp if not, the terrorist who might be a u.s. citizen wanders in? here's my bottom line. like others, i believe in the idea of a national security court is worth serious consideration for the sake of our democratic process. i see certain in damages, but i

see a number of legal and practical problems. the advisability of the idea also depends in very large part on the scope of what it is the court is to review. if i must be labelled one way or another, i guess i belong in the category of skeptic. what is my alternative prescription? i offer three things. first, continued efforts at transparency as an important government interest in and of itself and not just to keep the press, congress, and the courts back. back -- off its transparency is hard. the reality is is much easier to classify something that is to declassify. there are huge bureaucratic biases against the classifying something once it is classified. put and national security

officials in a room to discuss declassifying is certain fact. it will all say i am for transparency in principle, but at least seven will be concerned about second order effects. someone will say this is really hard, we need to think about it some more, the meeting is adjourned, and been officials go on to more pressing matters. last year, we declassified the basics of the u.s. military's counter-terrorism activity in yemen and somalia and disclosed what we were doing in june of 2012 war powers report to congress. it was a long and difficult the lebron process, but certain people in the white house persevered. we said publicly and officially what we were doing. as far as i can tell, the world has not come to an end. second, in my view, targeted lethal force is at its least controversial when it is on its strongest, most conditional

legal foundation. essential mission of the u.s. military is to capture or kill an enemy. armies have been doing this for thousands of years. as part of a congressionally authorized armed conflict, the foundation is even stronger. furthermore, the parameters of congressionally authorized armed conflict are transparent to the public. from the words of the congressional authorization itself and the executive branch's interpretation of that authorization, which this administration has made public. outside the parameters of congressionally authorized armed conflict by the military looks to the public to lack any boundaries and lends itself to the suspicion that it is an expedia substitute for criminal justice. third, the president can and

should institutionalize his own process internal to detected a branch to ensure the quality of the decision making. in this regard, i will note to the various public reports the obama administration is considering doing exactly that. this brings me to my final point. let's not lose sight of the reality that in this country we have for some time and trusted the president with awesome powers and responsibilities as commander-in-chief. arsenalols the nuclear and he alone has the authority to use it,. he alone as the constitutional authority with certain limits to deploy thousands of men and women in the u.s. military into hostilities on the other side of the world. entrust thewe president to conduct war and authorize lethal force against an individual, that presidential level decision brings with it a whole cadre of cabinet and sub-

cabinet level national security advisers from across the defense, state, and justice departments, and the intelligence community, who bring to the table different perspectives and engage in a very lively robust debate. i say only half jokingly that in 2009 in the then- existing structure, one of the most aggressive things a new president could do to promote credibility and ensure robust debate within the executive branch was to add to the mix as state department legal adviser a certain progress of human rights law professor from yale, give him access to counter-terrorism activities, and give him a voice and a seat at the table. made me and others work a lot harder over the last four years. what about the future? he's back at yale. answer is the president is

elected by the people and accountable to them. his legal and policy advisers are chosen just like a federal judge, appointed by the president and confirmed by the senate. if the senate is not satisfied that a nominee for a legal position in the national security elements of our government will provide independent advice and follow the rule of law, it should exercise its prerogative to withhold its advice and consent. these days the senate bill is the confirmation of a presidential nominee for a lot less. i am confident that the man reelected to be president for the next of lawyers, barack obama, is sensitive to these issues. i also have a lot of faith in the new cia director john brennan, who happens to be an alumnus of this university. over the first of all your years of the administration, i probably sat with him through some where between 50 and 100

situational meetings. i believe i know his mind and his values. in my opinion, john brennan embodies what the president talked about when he says that aggressive counterterrorism policies, the rule of law, and american values are not trade- offs and can coexist. said ah with something i year ago at yale law school while i was still in office. as a student of history, i believe those in government today must ask ourselves how we will be judged 10 or 20 or 15 years from now. mustpplications of law stand the test of time, because over the passage of time what we find tolerable today may be condemned in the permanent pages of history tomorrow. thenational security and people's faith in our government depends on this. thank you very much. [applause]

[captions copyright national cable satellite corp. 2013] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2013] >> we have to have a few moments of questions. >> sure. start witht we might any panelists. this might be a good way to start off the day's conversation. otherwise i will just go to general questions. jack? >> david has no questions. i cannot believe it. >> is saving them. he's thinking. >> hi. if this court were to only be

reviewing military strikes as the purview, what would you say to a hypothetical cia and armed drug program also having strikes approved by this court and with that not make it illegitimate, because it would be approving both military strikes under the purview of a military conflict and hypothetical cia drone strikes by civilian agencies? represented the u.s. military for four years. i cannot deny and will not comment on the counter-terrorism activities of any other agency. in the permutations that i offered in my prepared remarks, i outlined. all targeted lethal force, including as part of a congressionally authorized armed conflict by the u.s. military,

all targeted lethal force against a u.s. citizen including as part of a congressionally declared armed conflict by the u.s. military. my third permutation was targeted lethal force against a u.s. citizen off the high battlefield and not as part of a congressionally authorized armed conflict by the u.s. military. make isof the points i atat targeted lethal force is its least controversial and on its soundest legal footing when it is conducted by the u.s. military as part of a congressionally authorized armed conflict. i believe that is the case and i said that before. david? [indiscernible] judicially reviewable?

you suggested the operational leader who has planned attacks and intends to engage in a tax, but that it and it is not reviewable. imminence,"en " immen it's not an up-to-the-minute assessment on whether someone poses an immediate threat but rather it is a categorical concept that certain persons to fit this category by definition pose an imminent threat to us. is that not equally subject to judicial review even if? feasibility if? the second question is, if we put aside courts and we're having an internal executive process, what about having a ?evil's advocate position

you will not always have harrell, but you could always have a defined institutional role of somebody was job is to terms life, at least in of what has been leaked so far, harold,relying on b and he's gone, would that not make it a more robust process? >> i have a couple responses. experience as the gc for the department of defense for four years, the application of what i think we would consider eminent, not necessarily what you would assume from reading that white

paper -- by the way, i'm not a big fan of white papers, because in my private professional life we don't give clients white papers, because you don't know who authored it or signed off on it or who saw it, not a big fan of white papers. i have been in situations, i have seen situations where we looking at a military objective, but we concluded that the threat was not imminent and therefore of for the specific type military force we had been discussing here. we will continue to monitor or pursue other means. i'm not giving you a lot of in itsexcept to say that application, in my experience, the standard does not necessarily line up with how one

might read that white paper. i would to write it, probably write it a little different. second, i liked the idea of a devil's advocate. that i thinkng could been made part of the process, could be institutionalized. havein the military, you some special considerations. suppose you make a the make an 06 colonel and the objective goes up the chain and then crawl has to be devil's advocate in the space of some three star and a four-star generals or admirals' and he will want to be sure that there's not a point to be any retribution or anything for him being a good devil's advocate. i actually believe that a devil's advocate or something of that nature would be a good practice.

as a career litigator, i am accustomed to always making arguments on positions, expecting there will be someone on the other side who will take issue with everything i have to say and there's somebody in the middle that resolved the dispute. as a lawyer in the executive branch, as a senior lawyer for a government agency, you don't have that luxury most often in doing your own legal review. i think it would be advantageous, and i know i have been in situations where i sit around a conference table and i say would anyone like to be devil's advocate, among the 12 of you? ofy often i assume the role devil's advocate if i felt no one else was. so i think it would be a good idea. yes, sir? in the back.

>> thank you. i guess my question is what is the practical operational standards of proof before you killed,e someone to be an american citizen, american resident or not? effectively proved beyond a reasonable doubt? you and how short the fewer people after being before you kill somebody? -- how sure? we here is a standard that apply in the department of defense. lawyers inthat we particular want to think about these things in litigation law-

enforcement terms because we are used to experience dealing with evidence admissible in court, and its terms like proof beyond a reasonable doubt, reasonable suspicion, preponderant of the evidence. what you are dealing with in an armed conflict in counter- terrorism is intelligence very often and not evidence. bristoled when people wanted to talk about evidence in that context. evidence is in a trial proceeding because it meets certain threshold to prepare for courtroom. what we are doing is assessing intelligence. you want the intelligence to be youiable, dependable, and want to be pretty darn sure that on the proper

level of intelligence before you make a decision. because there are lots of things that in the intelligence realm one is allowed to consider that you don't consider in court, very often those judgments can be pretty reliable, in my experience. sometimes they can be sketchy, but sometimes they are very, very reliable. >> [inaudible] >> i'm not disagreeing with you. i don't believe that. there's a standard. i don't believe it's public. yes, sir? correct [inaudible] >> [inaudible]

>> that is a very good question. and i know that there's a hot debate going on among people in this room on that very issue. i am anxious to immerse myself in what has been written on the subject. i have only looked at it very quickly. i think the answer depends almost entirely on what are the threats right now? at this point, 3 and 1/2 months out of government, knowing how often threat streams can change, i don't feel equipped to make that judgment. i know it publicly available, but i think it depends in very large part on what those streams are. for the four years i was in

office, i thought that we made the aumf work. it is our interpretations in the executive branch were sustained by the courts in habeas litigation and the congress last year or the year before last in section 1021 of last year's ndaa codified our interpretation. it became the subject of litigation in new york. but congress codified it. so all three branches came to interpretation, which i thought worked for the four years i was in office. there's a point beyond which you want to get at various terrorist organizations or its affiliates. i've even seen talk about thatliate's of affiliate's,

it's not going to work. it was intended for a specific group that existed in 2001. one of the things i said at oxford was there's a point where point group-- that core group has been decimated so that the enemy as we knew it in 2001 no longer exists. at that point, our national leaders, the president and congress, have a decision to make. how do you want to deal with future threats? i think it would be unfair to simply ask the lawyers in the executive branch to just keep making this aumf thing work, keep interpreting it so that we meet existing threat and don't bother us in congress. our national leaders have to make a decision based on the whether we wanteat as a country a new congressional authorization to deal with existing threats or whether we

revert to reliance on more traditional means for our counter-terrorism activities -- law enforcement, intelligence community, and the military for eminent threats. -- the new york times editorial page the other day, the editor is a good friend of mine and a neighbor. we debate all the time about these things. i'm just not sure how one can call for repeal of the aumf without knowing what without knowingthreats are and appreciating that. -- without knowing the current threats. >> [indiscernible]

preserved andord when will it become available to the public? 25 years or 50 years? will it ever become available? >> i did not get the first part of your question. will the written record of these determinations ever become available to the public? >> of interrogations it? ? interrogations? >> no. people are not shy about making requests. if they don't get it, they bring litigation. i suppose years from now the internal deliberations classified by our government could become available. considernment can

declassifying certain components of its internal decision making about counter-terrorism. waysnk there are other that we can promote transparency, pursuit transparency without necessarily releasing any kind of written record of internal government deliberations. yes, christy? >> [inaudible] >> in five or 20 years from now? >> [inaudible] how likely is a drone court? am a skeptic.i as we speak, the world environment may also be may in thech that we

mentioned at- as i oxford, on more traditional means of counter-terrorism. t really is the case that armed conflict, targeted lethal force, should be regarded as extraordinary in an extraordinary state of affairs to deal with an existing threat tot our government came grapple with over 12 years ago. almost 12 years ago. there's a current debate that deserves a lot of attention. people in congress in washington need to have this discussion. as i tried to lay out this morning, i see some real practical and legal problems. ok, i will take one more

question. the gentleman in the red tie. whosorry if i missed anyone had their hands up. the feasibility, is it purely in operating question? is it fair to take political questions into account? and how do you persuade them to develop a greater incentive to capture in the future? >> i fail to make a point i wanted to make earlier, which is when you talk about questions feasibility of capture, those are not necessarily legal questions, and the lawyers or judges don't necessarily have to be the ones to make those calls. officer,n a military some civilian national security official, is fully equipped to

eminenceudgment about alimen based on his or her assessment of the intelligence. when i of seen happen is lawyers tend to believe that only lawyers can answer these questions. beoint that needs to emphasized is that lawyers set the outer boundaries for which, the legal lanes in the president and policy people operate. thaters come to a judgment someone or something is a lawful military objective, but there are lots of policy reasons, lots of military reasons why that individual should not be acted upon even though he's a lawful military objective. the point i would like to make in lawyers set the lanes

which a lot of judgments that get made by non-lawyers about how to pursue armed conflict and there arerrorism, so plenty of people equipped to make judgments about the feasibility of capture and not necessarily lawyers. we lawyers think we know it all, but we don't always have the best skill set for making decisions. ok, thank you all very much. i wish you good conference. [applause] >> next, q&a. and live it 7:00 a.m., your calls and comments on washington journal. cato institute hosts a discussion about the oversight of federal boards and

commissions created under the dodd-frank financial regulations law and the affordable care act. participants include a former white house counsel in the first theh administration aned health policy studies director trump the cato institute. that is at 4:00 p.m. eastern on c-span2. na monday night, ane tyler, andeticia julia tyoler. is like the madonna of first ladies. she posed as a model at a time when that was frowned upon. she was known as the rows of long island, by all accounts was bewitching spirit-- rose of long

island. she bewitched 57-year-old john tyler, who married her. she loved being first lady. she had a job for less than a year. it was julia tyler who ordered the marine band to play "hail to the chief" whenever the president appears. she greeted guests while sitting on a throne on a raised platform with purple plums in her hairbru. -- hair. that marthale washington had rejected. >> tonight live a 9:00 eastern on c-span and c-span3. also on c-span radio and c- span.org. reduce ouruester will grants by about 5%, which

equates to about $22 million or so, which will be distributed among the various licensees and stations that i have described. about awe have taken 13% cut in our overall federal funding over the last two years. if the entire federal government had sustained the cuts that we have sustained, the budget would be in the $500 billion smaller than it is now. so we feel we have made a significant contribution to deficit reduction and retirement of the federal debt within our own context. >> the impact of spending cuts on public television, tonight at 8:00 eastern on c-span2. >> this week, medea discusses

her group's politics in her book "drone warfare: killing by remote control." >> medea benjamin, what is codepink? >> it's an organization that started after the 9/11 attacks with the idea that if we did our jobs as citizens to mobilize and organize we could stop something like the invasion of iraq, which had nothing to do with 9/11. we were led by women. we created a strong movement around the country who did their civic duty of organizing and yet the government of george bush at that time did not listen. we are still to this day trying to shift u.s. policy to focus more on diplomacy and less on war. you change your name from susie benjamin to medea?