Transcript: Sen. Angus King’s Q&A on the nomination of John Brennan as CIA Director

Transcribed & edited by Jenny Jiang

Partial transcript of Sen. Angus King’s Q&A on the nomination of White House Counter-Terrorism Adviser John Brennan as the next CIA Director. The Senate Intelligence Committee hearing was held on Feb. 7, 2013:

Sen. Angus King (I-Maine):
…Going forward there needs to be some serious discussion with the Department of Defense about where the CIA end and the Department of Defense starts in terms of counter-terrorism activities and operations…because in this day and age, we just can’t be duplicating whole sets of capabilities and priorities and officers and procedures and everything else. I take it you subscribe?

John Brennan:
I do agree, Senator. And I look forward in the closed session to talking to you about some specific areas where I really do believe that Defense-CIA relationship and integration of effort is critically important to the safety and security of this nation. So again…mindful of not having any type of redundant capabilities or waste of resources, we need to make sure that we can leverage the capabilities that exist in both organizations for the good of this country.

Sen. Angus King (I-Maine):
An area that I want to spend a little bit of time on is the drone policy, in particular as it relates to American citizens. There’s a lot of law and history involved in our system of checks and balances. James Madison famously in the 51st Federalist said if people were angels we wouldn’t need a government and if the government was run by angels we wouldn’t need checks and balances. He concluded that angels were in a short supply then as they are today, and therefore, we need these kinds of checks and balances.

The 5th Amendment is pretty clear: “No deprivation of life, liberty, or property without due process of law.” And we’re depriving American citizens of their life when we target them with the drone attacks.

Now, I understand that it’s under military circumstances – these are enemy combatants and all of those kinds of things. But I would like to suggest to you that you consider…a FISA type process – a FISA court type process where American citizens going to be targeted for a lethal strike.

And I understand you can’t have co-commanders-in-chief but having the executive being the prosecutor, the judge, the jury, and the executioner all in one is very contrary to the traditions of the laws of this country and, particularly, in a situation where there’s time.A soldier on the battlefield doesn’t have time to go to court. But if you’re planning a strike over the manner of days, weeks, or months, there is an opportunity to at least go to some outside of the executive branch body, like the FISA court, in a confidential top-secret way make the the case that this American citizen is an enemy combatant, and at least that would be some check on the activities on the executive.

I have great confidence in you. I have great confidence in President Obama. But all the lesson of history is it shouldn’t matter who’s in charge because we should have procedures and processes in place that will protect us no matter who the people are that are in their particular positions. How do you react to this suggestion?

John Brennan:
Senator, I think it’s certainly worthy of discussion. Our tradition – our judicial tradition is that a court of law is used to determine one’s guilt or innocence for past actions, which is very different from the decisions that are made on the battlefield as well as actions that are taken against terrorists because none of those actions are to determine past guilt for those actions that they took. The decisions that are made are to take action so that we prevent a future action so that we protect American lives. That is an inherently executive branch function to determine, and the commander-in-chief and the chief executive has the responsibility to protect the welfare, well-being of American citizens.

So the concept, I understand. We have wrestled with this in terms of whether there can be a FISA-like court, whether the FISA-like court is to determine exactly whether or not there should be a warrant for certain types of activities.

Sen. Angus King (I-Maine):
It’s analogous to going to a court for a wire. Probable cause.

John Brennan:
Right, exactly. But the actions that we take on the counter-terrorism front, again, are to take actions against individuals where we believe the intelligence base is so strong and the nature of the threat is so grave and serious as well as imminent that we have no recourse except to take this action that may involve a lethal strike.

Sen. Angus King (I-Maine):
I completely agree with you, and I understand the dilemma and I’m not trying to suggest anything that would limit our ability to take action on behalf of the American citizens. I would just feel more comfortable if somebody other than a member of the executive says, “Yes, we agree that the evidence is so strong.” Except for as you’ve stated in the Hamdi decision, Sandra Day O’Connor had a wonderful statement – “A state of war is not a blank check for the President when it comes to the rights of the nation’s citizens.”

John Brennan:
Right, and that’s why I do think it’s a worthy discussion. And the point particularly about the due process really needs to be taken into account because there’s not a different standard as far as if a U.S. citizen joins Al Qaeda, you know, in terms of the intelligence base or whatever. But American citizens, by definition, are due much greater due process than anybody else by dint of their citizenship. So I think this is a very worthwhile discussion. I look forward to talking to the committee and others about it – what’s that appropriate balance between the executive, legislative, and judicial branch responsibilities in this area.


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