MR. TOM GJELTENThanks for joining us. I'm Tom Gjelten of NPR, sitting in today for Diane Rehm. She's on a station visit to WLRN in Miami. President Obama's counterterrorism advisor, John Brennan, faces a Senate confirmation hearing today. He's the president's choice to head the CIA. Brennan is certain to be asked about the U.S. drone warfare program.

MR. TOM GJELTENMany national security experts say these unmanned aircraft are effective. But critics point out that missile strikes from drones still cause civilian casualties. Plus they're concerned about the lack of transparency in drone policy. We have a top-notch panel here in the studio to discuss the use of drones and the counterterrorism fight.

MR. TOM GJELTENJoining me are Lawrence Korb of the Center for American Progress, Christopher Swift of Georgetown University, C. Dixon Osburn of Human Rights First and Peter Bergen of CNN and the New America Foundation. And you can offer your own comments and questions. Call us at 1-800-433-8850. Send us an email, drshow@wamu.org or join us via Facebook or Twitter. Good morning, all.

MR. LAWRENCE KORBGood morning.

PROF. CHRISTOPHER SWIFTGood morning.

MR. C. DIXON OSBURNGood morning.

MR. PETER BERGENGood morning.

GJELTENThanks for coming in. Before we get into the legality of the drone warfare program, which seems to be the topic of the week, let's just start with an overall view of drone warfare and its pros and cons. First, Peter Bergen, give us a -- this administration is far more enthused about the use of drones than its predecessor. Give us a sense of the scope of the drone warfare program.

BERGENWell, Tom, thanks for the invitation to come and speak with you today. I mean, first of all, I mean, I think a lot of viewers might be confused about what we're talking about at the beginning. We're not talking about the military use of drones, clearly, which has been expanding dramatically over time. We're talking about the CIA's use of drones. And as you've said, you know, the Obama administration has done six times more drone strikes than the George W. Bush administration in Pakistan.

BERGENIn 2010, there were 122 drone strikes in Pakistan. The number has been dropping pretty dramatically. It's about -- it's 48 in 2012. The controversy is not only about the legality but, as you point out, the civilian casualty issue. We at the New America Foundation tracked this carefully using credible news reports, and we found that the civilian casualty rate has declined pretty dramatically over time, averaging around 50 percent under George W. Bush and now down into the single digits under Obama.

BERGENAnd, you know, why is that? It's -- the drones linger over targets longer than they used to. There's better intelligence. They have smaller payloads or a whole sort of set of technical reasons why the civilian casualty rate is dropping. But nonetheless, it certainly remains down. And the other big point, which I think is lost in this, is that the Pakistani parliament has actually voted against us, you know, authorizing these things.

BERGENSo we're, you know, we're normally sort of in favor of democratic regimes in the Muslim world, yet when they vote against, you know, sort of disallowing the use of these things, we basically just ignore them. So we're kind of, you know, going against their national sovereignty. While the drone strikes in Pakistan have gone down, the ones in Yemen have gone up dramatically. There was one drone strike a couple years ago. Last year, there was about 46, as far as we can tell.

GJELTENLawrence Korb, what does this administration find so attractive about drones and their use in counterterrorism?

KORBWell, I think what they find is we don't have to send large land armies into countries that harbor terrorists with a global reach. And so it's not just drones that they've been relying more and more on. It has been the Special Forces. And I think this is the wave of the future. I mean, Americans are so, you know, upset about what happened in Iraq and Afghanistan. This is what they want to do. The great irony is -- you know, Peter pointed out all of the increase -- American people love it. They think that this is the way to go, and they're very happy with it.

GJELTENHow do we know that? How do we know that?

KORBWell, they've got opinion polls on it, and The Washington Post ran them yesterday. You know, Chris Cillizza, you know, looked at the opinion polls. Something like 85 percent of the people think it's the right thing to do. I think Peter makes the good points, one thing for the military because they have rules and regulations. Well, CIA, we don't know, and I think that's really where we have to, you know, take a hard look at it.

GJELTENWell, Christopher Swift, do we know how effective? We see the numbers that Peter referenced. How effective do you think the use of drones in this counterterrorism fight has been in dismantling, defeating, disrupting al-Qaida? The administration makes the argument that this has been the tool that explains, in their view, the -- essentially the decimation -- I think they've used that word -- of al-Qaida.

SWIFTWell, Tom, thank you, first of all, for the chance to be with you this morning. The situation is different in Pakistan and Yemen. In Yemen, we have a highly resilient adversary that's very well dug into the indigenous tribal structures. That's sort of what I found when I was out there doing research on al-Qaida in that country this past summer.

SWIFTIn Pakistan, we do see a broad decimation, especially of the mid-level core, the mid-level managers within the al-Qaida, Taliban, IMU and Haqqani Network structures. And part of the reason why they target that mid-level core is to destruct the organization's ability to connect the high-value leadership with the ordinary foot soldiers and then degrade the organization's ability to recover and adapt.

SWIFTAnd that's worked very, very well in Pakistan, as best we can tell from a purely objective or operational standpoint. In Yemen, the jury is still out. There has been a fair amount of effective operations in Yemen, but we also have this problem with a political backlash that's starting to undermine the political transition process we've set going in Yemen. And that's something we need to be considering very carefully as we move ahead.

GJELTENWell, Dixon Osburn, give us the -- what, in your judgment, are the criteria, the human rights criteria because you represent a human rights organization? What are the human rights criteria that we should evaluate, you know, war policies by? In this case -- because the argument here is that drones are actually more humane than, Larry Korb mentioned, you know, traditional ground warfare, sending a lot of troops in. That obviously produces civilian casualties as well. How do you want to judge these tools?

OSBURNYou know, I think, first of all, drones are not the issue. They are a weapons platform. The question is the lawfulness of the targeted killing program.

GJELTENOkay.

OSBURNAnd the laws are different if you are in an armed conflict or are not in an armed conflict. This week, the Department of Justice released a white paper, providing the most robust assessment of the legal criteria it was using. And what was concerning about it is that it seems to be turning the law now upside down. Outside of an armed conflict, you can only use lethal force against somebody if they're posing an imminent threat. And the government has defined an imminent threat as not a specific threat and not a threat in the immediate future.

OSBURNAnd that turns upside down sort of the plain meaning of what an imminent threat is supposed to be. So we're asking the government, you need to provide even more of the documentation from the Office of Legal Counsel, the Department of Justice and start a robust conversation to see if we actually are applying the laws of war and the other laws that should be governing us.

GJELTENDixon, I want to be sure I understand what you're saying in your position. You're raising legal issues. Do you have any concerns about the use of this particular weapon in this way for targeting al-Qaida -- suspected al-Qaida operatives and taking them -- killing them?

OSBURNYeah. For human rights, first, what we do is we look at international humanitarian law, also known as the laws of war, and those are the principles that we apply here. You know, on targeted killing, even as a human rights organization, we prefer targeted killing to the opposite, which is indiscriminate killing. So you need to follow what the laws are. In an armed conflict, you can use lethal force against an enemy. When you're battling a non-state actor like al-Qaida, the rules are a little bit more strict.

OSBURNYou can use lethal force against people who are directly participating in hostilities or people who are in a continuous combat function, like a bomb maker. And if you're not in an armed conflict, the rules are even more strict. And you can only use lethal force to somebody who's presenting an imminent threat, and there is no other way to resolve that. What's concerning right now from the Department of Justice white paper is that they seem to be blurring the lines between war and outside of war and blurring the meaning of the law when you're outside of war.

GJELTENChristopher.

SWIFTIf I can put on my lawyer hat here for a minute as opposed to my researcher hat, there are two issues -- in addition to the international law that Dixon has very carefully and very appropriately described, there are also two constitutional issues that U.S. lawyers need to consider. The first is does the president have this authority, and the second is, is there something in the bill of rights that would constrain this authority?

SWIFTI think as long as the president is operating in a foreign country that is a theater of war against an individual or group that is bearing arms or conspiring against the United States or its allies that the president is operating under his constitutional authority as commander in chief and the primary organ of U.S. foreign policy.

SWIFTThe difficulty that I have with the Justice Department memo is exactly this issue that Dixon raised and that's the whole question of imminence. And under our Fifth Amendment jurisprudence, if you look at the question of depriving someone of life, liberty or property, we need to have due process. So in the United States, you couldn't use a drone against an al-Qaida operative.

SWIFTYou'd really have to go and try to arrest him first. If you're dealing with, you know, an al-Qaida operative in London or Paris, you wouldn't be able to use a drone against them. In this particular context, the blurring of the lines of imminence is not only inconsistent with out domestic jurisprudence, it's also inconsistent with the international law that Dixon has been describing.

GJELTENPeter, you made an important distinction at the beginning, which is that between drones operated by the CIA and by the Defense Department, were you saying that the Defense Department does not use drones for targeted killing? Only the CIA does that?

BERGENWell, they use it context of a war...

GJELTENRight.

BERGEN...and there's a whole apparatus of judge advocates in general which is sort of the lawyers who work at the Defense Department who are engaged in these operations. And it's really no different than using artillery. It just happens to be a piece of flying artillery. So, you know, there's no controversy about this because it's just another tool on the battlefield. The controversy is the kind of covert nature of this program and some of the issues that the other gentlemen have just raised.

GJELTENQuickly, Lawrence.

KORBI think -- I want to pick up on one point that Christopher made. I think it's very careful that you have to -- just because you're a U.S. citizen does not guarantee you the right to plot against the United States.

GJELTENRight. And that, of course, was the subject of the white paper that you mentioned -- that both of you, Dixon and Christopher, mentioned that we're going to be getting into. Lawrence Korb is senior fellow at the Center for American Progress, former assistant secretary of defense in the Reagan administration. My other guests are Christopher Swift from Georgetown University and the University of Virginia's Center for National Law, Dixon Osburn from Human Rights First. He's the director of law and security there.

GJELTENAnd Peter Bergen from CNN, he's CNN's national security analyst and the author of "Manhunt: The Ten-Year Search for bin Laden - From 9/11 to Abbottabad. And he's director of national security studies at the New America Foundation. We're discussing the issue of the week, which is drone strike and the nomination of John Brennan, the architect of drones, to be CIA director. Stay with us. We'll be right back after a break.

GJELTENAnd welcome back. I'm Tom Gjelten, sitting in today for Diane Rehm. And our subject today is drone warfare and the use of drones in the counterterrorism fight and specifically the use of drones to target suspected al-Qaida operatives, even when they happen to be U.S. citizens. And the legal issues around this policy are front and center today because President Obama's nominee to be the CIA director is going before the Senate Intelligence Committee. That will be his confirmation hearing.

GJELTENAnd he, of course, is the manager of the drone warfare program in this administration. And joining me here in the studio to discuss this issue are: Lawrence Korb from the Center for American Progress, Christopher Swift from Georgetown University, C. Dixon Osburn from Human Rights First and Peter Bergen from CNN and the New America Foundation.

GJELTENNow, John Brennan the -- John Brennan's confirmation is the opportunity that members of Congress are going to have to raise issues about this. I said -- I just described him as the architect of the drone warfare program. To what extent is that fair? And to what extent is this really -- is he just sort of carrying out the Obama administration's policy? Christopher Swift.

SWIFTWell, I think he's definitely the architect of U.S. policy towards Yemen, both counterterrorism policy and our attempts to move the political transition process there.

SWIFTAs to whether he is the architect of all U.S. counterterrorism policy involving drones, I think there's a broader consensus within the U.S. government, that Larry was describing earlier, about the need to move from resource and intensive counter-insurgency operations, which we've seen cost a lot of blood and treasure and frustration in places like Iraq and Afghanistan, to a lighter footprint, more remote counterterrorism-style operation. And I think that's been an administrative -- administration policy that would be occurring even if John Brennan wasn't a primary player in it.

GJELTENWell, of course, he is not himself a lawyer. He's not at the Office of Legal Counsel, nor the Justice Department. And yet the confirmation hearing is really focusing on these legal issues that we've been talking about. Dixon, what do you think about -- I mean, how well is John Brennan going to be able to defend these legal arguments when that's really not his lane, is it?

OSBURNThat is going to be a very a question, and I hope to go to the hearings today to hear what he has to say. I think one of the questions that members of Congress should focus on today with him is reflecting on the speech that he's given on targeted killing and drones. And he has said, I think, quite passionately that there are pragmatic concerns here. Now, what is the precedent that the United States is setting that other nations will follow, and especially other nations who may not adhere to the rule of law and human rights principles that we do?

OSBURNSo read into that now once China or Iran or Russia has armed drones and made target counterterrorism operations in the way that have. Right now, the acceleration of the targeted killing program by the program by the United States, I think, is outpacing the rules that are governing them. So those are some of the issues that I think the senators are going to have to ask him today.

GJELTENNow, Peter Bergen, you made the point that actually the use of drones, even though they expanded dramatically into this administration, there seems to be a little bit of a scaling back in the last few months. Does this reflect some increased concern about the precedence that are being set that Dixon just mentioned?

BERGENYeah.

GJELTENYou know, the possible backlash of the civilian population?

BERGENYou know, in Pakistan, there's been a dramatic drop, I think, about 65 -- 70 percent in the last two years, in the number of drone strikes. And I think there's been a debate between the State Department and the CIA. Essentially, the State Department is saying, look, if the cost of, you know, killing basically a lot of low-level members of the Taliban, which are 98 percent of the victims or 90 percent of the victims, whatever your number is, is that we, you know, piss off 180 million Pakistanis.

BERGENYou know, that's a pretty high cost to pay. And this debate -- I think, you know, the CIA is still in charge of the program. The State Department can't really stop these strikes, even though they can lodge an objection. But I think that may have lost the battle about who controls it, but they've won the larger war, which is, we need to be a little bit more careful.

BERGENIn fact, David Petraeus, when he was director of the CIA, was really kind of in charge of the CIA, the point where the CIA started being a little bit more discriminatory about this. And I think, you know, having been in the region, he understood that this was an important thing to do.

GJELTENLawrence, it's not only David Petraeus. I mean, Michael Hayden, the former director of the CIA, has expressed some of these concerns about the precedence that are being set, and Gen. Stanley McChrystal and also Adm. Dennis Blair, the former director of National Intelligence. All of them have pointed out some of the drawbacks about depending too heavily on drones.

KORBWell, I think so because they recognize that when you kill indiscriminately, it endangers the men and women on the ground, and they've been on the ground doing it. And that, in fact, it is a weapon of war, and these are warriors and they understand that, whereas, somebody in another agency, you know, may not recognize what's going.

KORBAnd I think they want -- the military, they want a real debate about this. You know, in other -- what's the legality? How do I decide? Who makes the decision? You know, do I get it to -- give the discretion to the man or woman on the ground? Does it have to come from, you know, from higher up? And I think that's one of the things, I think, will be great about Brennan's hearings, where we'll get all these issues out.

KORBAnd, of course, the administration today set up the whole legal justification this morning -- not just that leaked memo -- so now -- and I think this is good. Congress needs to get involved. They need to decide whether that, you know, act they passed right after 9/11 is still relevant in terms to our war with al-Qaida and their affiliates.

GJELTENI was just going to bring that up, Christopher Swift. Congress -- we raised questions here about whether the president had the authority -- has the authority to do all this targeting. But Congress gave him very broad authority to use military force right after 9/11, didn't they?

SWIFTIt is very broad, Tom. And that authority -- when you look at Justice Jackson's opinion, concurring opinion from the Youngtown steel case back from the 1940s, when Congress and the president are on the same page, the courts are going to take -- the courts are basically going to stay away from national security issues to the extent that they possible can because the understanding is that the two political branches have come to a conclusion about the best way to prosecute a war.

SWIFTAnd look, war is essentially -- it's governed by law, but it is essentially a political act. But, you know, one of the other things -- Larry raises a great point about Congress' role in this whole process. And one of the things that Congress can do with its oversight is help make sure that we align our response to our short-term security imperatives to our enduring values and our long-term policy interest. And I think that misalignment is starting to become more and more apparent in some of the things Peter has mentioned from Pakistan and some of the things I saw in Yemen this past summer.

GJELTENDixon.

OSBURNI think Congress, to date, has advocated its responsibility at oversight. We haven't had any subsequent hearings on drones or targeted killings since their inception. One of the debates that need to happen, though, is, are we in a place where we're getting trapped in a perpetual global war? The authorization that you described, that was passed back in 2001, actually was somewhat limited.

OSBURNI mean, it was supposed to be focused on those who attacked us on 9/11 and those who harbored them. So think of bin Laden and his al-Qaida and the Taliban who harbored them. And there is an increasing debate as we get further and further away from 9/11. And as the specter of sending troops or drones into Mali or Algeria or wherever else, there seems to be a disconnect. And President Obama, I think, set the tone.

OSBURNYou were asking, you know, whether Brennan was the chief architect of our counterterrorism strategy. I think that the broad strokes, it's the president. And in his inaugural speech, the president said that enduring security cannot be -- mean perpetual war, and he has specifically said repeatedly, we are ending more than a decade of war. So if that is the case, that then means that our counterterrorism operations will need to operate not under war, but return to a law enforcement model that will circumscribe some of what we can and cannot do.

GJELTENWell, let's look at this from an international perspective. Several of you have mentioned the possibility that other countries will follow the example of the United States. The United States, of course, has been the pacesetter in this. But, you know, let's say China were to use drones in Tibet, against Tibetan rebels. They could certainly cite the U.S. use of drones against al-Qaida as having established sort of the principle that this should be OK.

GJELTENAre there international -- can the international laws of war be modified or interpreted or analyzed in such a way as to clarify when exactly are drone weapons suitable, and when they should not be? Christopher, is there some sort of modification of international laws of war that might be necessary here?

SWIFTYou know, I actually don't think there is and let me explain why I believe that. The first thing is the use of this particular platform doesn't change the nature of the policy. The instrument doesn't change the fundamental nature of war. And whenever you engage in a war, you're changing the social and political dynamics in the society where you're fighting at. And that's part of the reason why we have international law governing how and when and why we can use force.

SWIFTYou know, a lot of people think about the law of war as sort of a yes or no and on or off. But what it really is is a set of norms and lessons and values that have been handed down to us by our grandparents and our grandparents' grandparents who fought some really nasty wars and learned some really hard lessons.

SWIFTSo, you know, I agree with Dixon that there's a strong basis on international humanitarian law here, you know, to sort of guide how we proceed in the future, but we have to look beyond the platform and really focus on the policy. And that relationship between policy and law, between force and policy, is something that we don't see discussed when we think about law in binary, black-and-white terms.

GJELTENI want to read an email here from George, who wonders what the procedures are whereby the targets seen on a monitor is indeed the bad guy they are after. "In other words, to what extent do eyes on the ground verify what the eyes in the sky are putting the crosshairs on?" Peter, are you aware of that?

BERGENYeah. I mean, part of the discussion here is that the answer to that is twofold. One is there may be a al-Qaida leader who is positively identified, and I think that's pretty uncontroversial. But what is much more controversial is the so-called signature strike, which basically, you know, basically they target people who are doing things that appear to be -- make them leaders of the Taliban or maybe making IEDs and et cetera.

BERGENAnd often these signature strikes kill more than one person. Clearly they're not -- it's not like -- you don't even know who these people are except basically a pattern of life. And so the answer to that question depends on kind of a range of targets. I think, in Pakistan, the number of signature strikes have decreased, which is a good thing. My impression is, in Yemen, they kind of remain pretty stable.

GJELTENPeter Bergen from the New America Foundation. I'm Tom Gjelten. You're listening to "The Diane Rehm Show." And you can join us with your calls. We'll be taking your calls later in the hour. The number is 1-800-433-8850. Lawrence, there's something sort of ironic here, I think, about this administration's emphasis -- interest in using drones.

GJELTENAnd that is that President Obama and Atty. Gen. Eric Holder and others in this administration were fierce critics of the prior administration's use of enhanced interrogation techniques. Can you make the argument that, you know, blowing a suspected terrorist up is more humane than capturing him and bringing him to a place like Guantanamo and interrogating him?

KORBI wouldn't make the argument it's more humane, but I would say it's more legal. And if you read the memo that Dixon has talked about, they use the term imminent threat. Now, let's -- leaving aside, you know, who decides whether it's imminent or not, under international law, if it's an imminent threat, you have the right to pre-empt, like the Israelis didn't have to wait till the Egyptians attacked, you know, back in 1967. So that's the real key.

KORBNow if you go back and you look at Iraq -- it was very interesting, I didn't get ready for today -- Bush never used the term imminent threat. That was kind of preventive war, which is a whole other issue, and I think that's the real key. Is it an imminent threat? Who decides? And if it is, then I think you got a legal adjustment. If it's not, then you got, you know, you got a real problem there.

GJELTENChristopher Swift. Yeah.

SWIFTI might say that, you know, one, first off, Larry is absolutely right. The Caroline doctrine -- which was first articulated by Daniel Webster during a border dispute between the United States and Canada in the 19th century -- is now not only a customary international law, but it's been subsumed within the United Nations charter. But this whole notion of imminence is also in our own Fifth Amendment jurisprudence under the U.S. Constitution.

SWIFTIn U.S. law, a police officer can't shoot at you or take your life or, you know, be involved in that kind of an action unless there is an imminent threat to the police officer, to the public or, you know, to substantial -- substantially important government property. So this whole notion of imminence is based on there being the threat right now. If someone's shooting at you, about to harm you, you can do something. But if they go around the corner at a Starbucks to get a coffee, you can't use force against them in that instance. You have to arrest them.

GJELTENBut, Dixon Osburn, you have mentioned before that you think Congress needs to have more of a hand in some of these judgments. Really, can it be up to anybody but the military and the executive branch to decide what is an imminent threat?

OSBURNI'm not asking for Congress to get into operational details. You do want to leave that to your leaders to make those sorts of decisions. But Congress has every right to ask the basic question of what is the threat that we're facing around the world, and what is the best response to that threat? And what is that -- is that going to impact U.S. strategic interests or not? They're not even asking those basic questions, let alone asking questions about the legal framework that is governing our decisions in targeted killing.

GJELTENPeter Bergen.

BERGENThis is just sort of an interesting factual observation. If you take the absolute and most conservative estimate of the number of drone casualties in Pakistan, it's 1,600, all of which -- about 145 were civilians. This is the most conservative estimate. George W. Bush, of course, transferred 800 people to Guantanamo. We now know, you know, a number of those people certainly shouldn't have been there.

BERGENIt defies common sense that all 1,600 people that were killed in these attacks were, you know, were in some way really enemies of the United States. And however you define a drone strike, it's an execution without trial. There is clearly some kind of process. But according to Harold Koh, who was a State Department lawyer, the process for Anwar al-Awlaki, the American citizen who was killed in Yemen, basically involved him looking over his papers for about five hours. Now, typically, in an American trial, the due process would be considerably longer than five hours.

GJELTENDixon.

OSBURNI just want to make one short point, which goes back to your original question to Larry that was contrasting the Bush administration torture memos with the current policy on targeted killing. I want to draw a very stark line that I think these are different. Torture is illegal, always, but targeted killing is lawful under the laws of war.

GJELTENAnd that's what Larry Korb -- that's the point that you made, Larry, that it -- whether it's humane or not is not the issue. It's whether it's legal that's the issue.

KORBYeah, yeah. I mean, if you look -- for example, we invaded Iraq. We displaced a million people, killed several hundred thousand, OK, much more than any of, you know, the numbers that Peter has been talking about.

GJELTENChristopher Swift.

SWIFTYou know, going back to the points that have been made earlier about congressional oversight and the role that Congress can play in our counterterrorism operations more generally, we're now into a global war on terror that's more than a decade long. In the last decade, the United States government has never articulated or employed clear, objective criteria for distinguishing al-Qaida and its affiliated syndicates from indigenous patterns of Islamic militancy.

SWIFTAbsent those criteria, we have a real risk of wars expanding out of control and us not being able to determine what is and what isn't a legitimate target. It's something I saw in Yemen over the summer. I'm sure it's something people have seen in other conflict zones as well.

GJELTENNow, in Yemen, what was your, very quickly, your bottom line feeling about whether the drone strikes there have caused an increase in recruiting for al-Qaida or not?

SWIFTSure. Very, very shortly, and this is a very controversial topic. The tribal leaders and religious leaders that I spoke to out in the field in Yemen overwhelmingly told me that economic inducements, poverty, high al-Qaida salary, those sort of things were the primary drivers of al-Qaida recruiting.

SWIFTWhile there was some anecdotal evidence that individuals may have been annoyed by a drone strike or, you know, enraged by a drone strike on a family member, overwhelmingly, what's bringing people into the insurgency in Yemen is not ideology. It's not resentment. It's not politics. It's starvation and structural poverty.

GJELTENChristopher Swift is adjunct professor of national security studies at Georgetown University and a fellow at the University of Virginia's Center for National Security Law. We're going to take a short break. When we come back, we'll be taking your calls and your comments about the use of drones in the U.S. counterterrorism fight. Stay with us.

GJELTENWelcome back. I'm Tom Gjelten, sitting in today for Diane Rehm. And our subject, if you're just joining us, is the use of drones in the U.S. counterterrorism struggle. My guests here in the studio are Lawrence Korb from the Center for American Progress. Also, he was a former assistant secretary of defense in the Reagan administration. Christopher Swift from Georgetown University, Dixon Osburn is director of law and security at Human Rights First.

GJELTENAnd Peter Bergen, he's CNN's national security analyst and he's the author of "Manhunt: The Ten-Year Search for bin Laden -- From 9/11 to Abbottabad." And he's director of national security studies at the New America Foundation. We're going to be going to calls in just a second. I want to read a couple of emails first. Bill mentioned something that you said, Larry.

GJELTEN"Your guest made an incredible statement. He said that blowing someone up with a drone was more legal than capturing him and bringing him into trial. How can he say that? There's no due process in a drone strike." Nevertheless, those of you who are lawyers actually agreed with Larry on that point. I don't know if you want to respond or not, but...

KORBWell, I think this is an important thing. As Christopher mentioned, torture is illegal. Fighting a war that's been authorized by Congress is not. And I think we have to -- we're focusing on drones. We're really talking about war. And I think that's what you want to keep the focus on.

GJELTENAll right. And we have another email who points out that this morning Iran acclaims to have -- Iran says that it has showed footage of what it said was a U.S. drone that it had captured. And this raises this issue which I think a lot of listeners want to weigh in on, and that is the proliferation of drone technology. And what are we looking at here? How long is it going to be before other countries are using drones as extensively as we are? Peter Bergen.

BERGENSeventy countries have drones. In fact, Pakistan has drones, by the way. And it's seeking to arm them. Three countries use armed drones, the United States, Britain and Israel. China had an arms show in 2010 indicating that they have plenty of drones that are ready to be armed. So, you know, I think the Chinese will be next, and there will be others. By the way, we didn't have armed drones until after 9/11, you know? We didn't have that technology. Look how it's proliferated quickly within our system. So, you know, the cat is out of the bag. Others will follow.

GJELTENHow important is -- or how complicated is this technology? I mean...

BERGENYou can buy a drone on Amazon for 300 bucks. And then, you know, it's another five bucks for shipping, you know? So it's not that complicated. I mean, arming one is a different, you know, animal, but nonetheless, I don't think it's just that complicated.

GJELTENRight.

KORBYou know, this is the future of warfare. The Air Force has 7,500 of them now. Half the graduates of the Air Force Academy last year went into drones.

GJELTENThat's the future of warfare. And those guys -- are they pilots or are they, you know?

KORBWell, theoretically they're pilots. And of course, you know, the whole question is, do they get air medals and things like that? I mean, it's really cultural challenge for the Air Force.

GJELTENRight. Let's go to Nathan, who's on the line for Iowa City. Good morning, Nathan. Thanks for calling "The Diane Rehm Show."

NATHANHi. Thanks for taking my call.

GJELTENYou bet.

NATHANI have a quick comment and a question, and I'll take it off the air. My comment is, going all the way back to the beginning with civilian casualties, if you look historically, we used to bomb entire cities, World War II: Hiroshima, Nagasaki, Dresden. So we are reducing civilian casualties. Not that any are good but, you know, we're getting better at what we do.

NATHANAnd then more importantly, the question I have regarding those civilian casualties, when we do a surgical strike and you say civilians are lost, I mean, are we bombing open-air markets? Or are some of the people that are killed family members who may hold the same beliefs as the targeted person? Thanks for my call.

GJELTENChristopher? Christopher Swift?

SWIFTWell, we're not allowed to target people based on their beliefs. We have to target them based on their actions. And that's an important distinction to make. Terrorism may -- people may see it as an ideology -- and there certainly is an ideology behind it -- but the focus of U.S. counterterrorism operations is on particular individuals engaged in particular acts. Now, look, the fact of the matter is war is a horrible, terrible thing, and as an international lawyer and a constitutional lawyer, I try to avoid it and encourage people to avoid it whenever possible.

SWIFTBut civilian causalities are byproduct of war. And while we may be getting better at it, we should, at the same time, not assume that the fact that we've been able to reduce civilian casualties doesn't nonetheless affect the political situation in the places where we're intervening. We see that in Pakistan. We see that in Yemen. And we've got to align these short-term security imperatives with our long-term political interest and values.

GJELTENDixon Osburn, I was talking with somebody yesterday, a veteran CIA officer who pointed out that even if you -- not just a matter of civilian casualties that we've seen in mass bombing, but even if you talk about assassinations, the amount of assassinations that the United States has undertaken via the drone program doesn't bear a candle to what happened in Vietnam with Operation Phoenix, for example. I mean, we're not really in a whole new era of immoral acts, are we here? We're unfortunately sort of building on a long history.

OSBURNWell, I don't think this is a number's game. That's not where the focus is. The question is the legality and it's also the president. Talking to another CIA counterterrorism analyst, Robert Grenier, I mean, he's been very critical of this program. He's critical of both the precedent that we're setting, critical of, you know, whether or not we're losing intelligence because our allies on the ground are not willing to share with us the intelligence so that we can engage in additional operations.

OSBURNThere are concerns about sovereignty. Gen. McChrystal at Brookings two weeks ago said, do we really want Mexico to send a drone into Texas to get a drug lord? These are issues that we're going to have to wrestle with very quickly and set the right rules of the road.

GJELTENI'm curious about something, Peter. You mentioned the Pakistan parliament has been -- I'm hoping that you can clarify this -- has been opposed to this. And recently, we just saw the Pakistan's ambassador to the United States insisting that her government has not give permission to the United States to carry out drone attacks. We have heard for years that, tacitly, Pakistan has approved the use of drones on their territory. Can you straighten that out for us?

OSBURNYeah, to the extent that it's possible is a murky subject. But I think, you know, WikiLeaks showed that Pakistani politicians were meeting with senior U.S. leaders and sort of saying hey, we'll criticize this in public, but we're fine with it in practice. I think that has changed. The Pakistani parliament in April, very, you know, massively voted against this. Sherry Rehman, the very impressive U.S. ambassador from Pakistan, has publicly, you know, sort of denounced this. So I think the politics have shifted in Pakistan now.

GJELTENOK. Let's go now to Andy, who's on the line from Iron Station, N.C. good morning, Andy. Thanks for calling "The Diane Rehm Show."

ANDYGood morning. I guess I'm an average-type American, a mix between liberal and conservative views. To me, the drones are like what you were talking about in Vietnam. They're basically a super hi-tech sniper rifle. What I'm concerned with is that we overlook the root causes of the asymmetrical warfare we're in and -- that use these anti-terrorism techniques as a management tool for another policy which is creating the terrorism, and that would be, of course, the global energy policy.

ANDYUntil you eliminate the importance of the Mid-East and the support that the Western countries have given dictators over the last 30, 40, 50 years, you know, you're not going to eliminate the root cause of terrorism. I'm all for taking out the ones that are actively trying to kill us, but the goal, I would think, would be to stop creating fanatics and then take care of the fanatics that are left over from our mistakes in the past.

GJELTENWell, I don't think the Obama administration would argue that this is sort of the long-term answer to terrorism. I do think they see it as a tool, right?

ANDYI think there's general blindness and -- I mean, the Obama administration has done some things, but there's not a collective political decision that, you know, the fossil fuel system that we've been relying on is starting to fragment.

GJELTENWell, power relations, geopolitical relations are certainly important. Lawrence Korb, you had a comment.

KORBWell, I think, you know, it's important to keep in mind this war on terrorism is the wrong term. We're not -- terrorism's a tactic. It's -- as the Congress in 2001, it's al-Qaida and its affiliated groups, and that, I think, is really important. We're not concerned about every terrorist, only those with a global reach.

GJELTENI want to read an email here from Jack who is actually a former NATO political adviser in Afghanistan. And Jack writes, "Drones require ground basing near the target areas. The growing use of drones in the war on terrorism requires us to build bases in very unstable places. The latest has been a new base in Niger to monitor Mali in the Sahara.

GJELTEN"They also require us to have bases in Afghanistan after 2014 in order to continue firing missiles at al-Qaida in Pakistan." Well, I would think that -- I would think, Peter, that a drone base is less of a smaller footprint in a country than a base for ground forces obviously.

BERGENSure. And if you look at the kind of chain in a drone strike, I mean, 65 people may be involved in one drone strike, and most of those will be sitting in Nevada or in Tampa or in places that are not in the region. But I wanted to thrown in one thought here. You know, the question is, how effective has this been against al-Qaida? And the principally kind of proponent of view that's been effective is Osama bin Laden.

BERGENIf you look at the documents that were recovered in Abbottabad, bin Laden was extremely worried about the effects of drones strikes we're having on al-Qaida. He was suggesting that we should move from western tribal regions in Pakistan into a very remote part of Afghanistan. He was telling his son to move to Qatar, which is one of the riches and safest countries in the world. So, you know, there is no doubt that this has been highly effective on the upper reaches of al-Qaida in Pakistan.

GJELTENOK. Let's go now to Andrew who's on the line from Tucson, Ariz. Good morning, Andrew.

ANDREWGood morning. I'm actually -- I'm a senior at the University of Arizona here, and I'm actually writing my thesis on this.

GJELTENOK. Good.

ANDREWBut -- so my comment is that -- so we mentioned international humanitarian law and then international human rights law.

GJELTENMm hmm. Yes.

ANDREWAnd I believe one of your guests was saying that this is kind of -- this has been built on generations of norms and laws. And, I guess, when really in the history of the U.S. ever been engaged in a conflict like this or has, like, any country? And so my question is, do these two sets of laws really apply and maybe if there's kind of a new middle ground, kind of a, like, a new legal framework that doesn't actually exist yet? 'Cause it's kind of like -- I'm kind of sympathetic to both sides in this. It's -- they kind of dance around being combatant, being a civilian. And so it just seems really tricky.

GJELTENOK, Andrew. I'm going to try and give you some help here for your thesis.

GJELTENFirst, Dixon Osburn, you are the one that made the point about how international humanitarian law and the laws of war build on generations of wisdom and knowledge and experience. So what about it? Is the war on terrorism so new and different that those old laws are outmoded?

OSBURNHuman rights, first, we work with a group of about 50 retired general and admirals, and they bring with them quite a bit of wisdom over a number of conflicts. And they reminded me that back in World War II, the comment was we've never seen a war like this before. Well, every single conflict that we face, people say, this is not like anything that we've seen before. That doesn't mean that you throw away the legal framework. Actually, the legal framework remains quite robust.

GJELTENDixon Osburn is director of law and security at Human Rights First. I'm Tom Gjelten. You're listening to "The Diane Rehm Show." Christopher, did you have a point you wanted to add there?

SWIFTYeah, I did. I think, Andrew, you need to go back, you know, I have students at Georgetown, they were also writing on this topic as you might imagine. I think you need to go back to the fundamentals of what law and war are for. The purpose of war, according to Clausewitz, is to achieve terms of peace by degrading your adversary's ability to harm you and his ability to resist your will.

SWIFTThe purpose of law is to order and resolve disputes. These two concepts both serve policy. They both serve the way that we try to build our ideal vision of the future for our societies. And they are in fundamental tension with one another. But this tension between liberty on the one hand and security on the other is not an absolute tension.

SWIFTSo when, you know, Dixon and I talk about generations of knowledge that has been passed down to us about the relationship between law and war, this is a flexible relationship. And the thing we really need to be looking at is not what's right or wrong and not what's left or right, not this terrorism versus human rights but how we balance our interest and our values, how we balance power and principle moving forward when we're making decisions.

GJELTENLet's go now to Paul who's on the line from Lexington, Va. Good morning, Paul. Thanks for calling "The Diane Rehm Show."

PAULGood morning, Tom, and your guests. Thank you very much for taking my call.

GJELTENYou bet.

PAULYou commented earlier there's a question of the use of drones is for targeted killings of U.S. citizens is principally a legal question, and that's where most of the questions in your discussion is centered. I'm wondering if a legal foundation isn't being set up. There are three pieces of legislation that have recently passed or are under consideration now that I think draw a connection to the use of drones against U.S. citizens. And I'd like to ask your guests to comment if they see a connection there.

PAULI'm not a conspiracy theorist by any stretch, but I'd like to just quickly ask them about these three things: the NDAA 2012 authorizing indefinite detention of U.S. citizens without due process, even though the president said they would interpret the section, a relevant section of that that ensures, you know...

GJELTENRight. Yeah.

PAUL...that it would be applied to (unintelligible) and the Expatriation Act permits the government to strip a citizen of their citizenship if they're deemed a hostile without going before a court of law. And finally, the administration that's currently arguing that wireless tracking of cellphone data and mobile location, wireless location data, is perfectly legal.

GJELTENOK, Paul. Well, we can't get into all of that in detail, but I think we can say that there is a fairly impressive amount of continuity here, Christopher Swift, between the Bush administration, the tools of the Bush administration introduced from warrantless surveillance to others, indefinite detention, to the policies that this administration is following. I mean, considering how much of a ideological difference there has been between these two administrations, the continuity in these issues that Paul is mentioning is really quite striking, isn't it?

SWIFTRight. And that's because of the nature of warfare itself, right? War serves not policy but itself, and that's part of the reason why we have laws, to restrain what war does and how war shapes our society. But if you look at some of these operational dynamics, there is a lot of continuity between the George W. Bush administration and the Obama administration.

SWIFTThat's because of the nature of the information we're trying to gather and the nature of the threat we're trying to counter. I think there's a large distinction to be drawn, however, in the degree of transparency and the effort to show the legal justification for these things between the two administrations.

GJELTENWe're getting up to the end of the hour here, but we haven't talked a lot of John Brennan. I'm wondering if any of you see his nomination at all in jeopardy, or is his confirmation just being used as an opportunity to raise these issues? Very quick, Peter.

BERGENI doubt it's in jeopardy because I think to jeopardize that kind of confirmation, there would have to be major sort of ethical -- personal, ethical problems that he has. I just don't see it.

GJELTENLawrence.

KORBI think it's great opportunity to get all the questions we were talking about today. And unlike the Hagel nomination where they were talking about nothing relevant to his job, I think this is a good opportunity for the country to confront these issues.

GJELTENAnd, Dixon, you were saying that it may not be that John Brennan is even the right person to have to answer all these issues, but whatever you think what you get, right?

OSBURNWell, he's going to be one person, and then you're going to have nominations for another Pentagon general counsel and others where these questions can also come up. What I'm hoping is that the release of the DOJ white paper this week is starting the conversation, starting a robust debate. And I will encourage Congress to get engaged in their oversight.

GJELTENDixon Osburn is director of law and security at Human Rights First. I've also been joined this morning by Christopher Swift. He's an adjunct professor of national security studies at Georgetown University and a fellow at the University of Virginia's Center for National Security Law. Plus, Lawrence Korb, a former assistant secretary of defense in the Reagan administration, now at a Democratic think tank, the Center for American Progress.

GJELTENAnd Peter Bergen, CNN's national security analyst, the author of "Manhunt: The Ten-Year Search for bin Laden - From 9/11 to Abbottabad," director of national security studies at the New America Foundation. I'm Tom Gjelten. Thanks for listening. Thanks to all of you for coming in.

KORBThank you.

SWIFTThank you.

ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Denise Couture, Susan Nabors, Rebecca Kaufman and Lisa Dunn. The engineer is Aaron Stamper. Natalie Yuravlivker answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales.