National Security
3:10 pm
Tue February 12, 2013

The Sticky Questions Surrounding Drones And Kill Lists

Originally published on Tue February 12, 2013 3:17 pm

New York Times reporter Scott Shane and colleague Jo Becker reported last year that the Obama administration has a list of terrorists targeted for drone attacks, and that the president personally approves such strikes.

The administration has been trying to keep details of its drone program under wraps, arguing that to make it public could threaten national security. Shane has reported numerous such stories.

Last week, he wrote that the U.S. has a military base in Saudi Arabia from which they launch drone strikes. Several news organizations, including the Times, had known for months about the drone base, but had been sitting on the information at the urging of the Obama administration.

But the location of bases, says Shane, was not the most interesting part of the story.

"The most interesting part of this story," he tells Fresh Air's Terry Gross, "is how are we using a new military technology in countries where we're not at war to kill suspected terrorists? How's that going? What are the long-term consequences? Is this the way we'll be dealing with multiple problems perhaps even beyond terrorism in the future? Those are the questions that interest me."

A leading architect of U.S. drone policy, John O. Brennan, the White House counterterrorism adviser, is President Obama's nominee for CIA director. His confirmation hearing last week put increased scrutiny on drone strikes.

Those killed in the strikes include Anwar al-Awlaki, an American citizen who was reportedly working with al-Qaida when he was hit in Yemen in 2011.

Shane and his colleague at The New York Times, Charlie Savage, filed a Freedom of Information Act lawsuit against the Justice Department to get access to a 2010 memo from the Office of Legal Counsel that lays out the justification for the targeted killing of American citizens.

The memo provides insight into the government's justification for what Shane says is "something novel and extreme — in a way — such as killing an American citizen in another country without trial and without criminal charges as part of a counterterrorism operation."


Interview Highlights

On helping break the story last May that the Obama administration had a targeted kill list, and that the president approved attacks

"President Obama, we're told, wanted to be very hands on, and he insisted on approving all strikes outside of Pakistan. ... He also wanted to sign off on the more high-risk strikes in Pakistan, which, we were told, amounted to perhaps a third of the strikes in Pakistan. But it was quite extraordinary in the sense that you had actual target approval by a president. You usually think of this stuff as distanced from the president ... or at least his hands kept clean of the details of this kind of thing. But he insisted on being very involved, and that has all kinds of, I suppose, political reverberations both good for him and perhaps bad for him."

On the Obama administration's justification of the president's personal approval of the names on the kill list

"I don't think it's that [President Obama is] bloodthirsty and really enjoys trying to put people's names on lists to be killed. I think there's a certain wariness — probably a proper wariness — that any president would have towards agencies. Agencies kind of want to do what they're good at doing, or what they're job is.

"So certainly, according to what we've heard, both the CIA and ... the element of the military that does these strikes are pretty aggressive. They want to find targets and kill them, and so I think the role of the White House — the role that President Obama assigned to the White House — was, and to himself, was really one of restraining the agencies, double-checking the agencies, making sure that at this sort of broader strategic, political level, that there was good judgment being exercised, that you weren't taking a shot in a very marginal situation or for a marginal gain and risking a big backlash that would put the United States in a worse position."

On how the targeted kill list is developed

"As far as we're able to tell in this very secretive process, there's one process for the military which is quite interesting because it can involve as many as 100 people watching on video monitors in multiple agencies, and somebody presents a set of possible targets — these are individual nominations, as they call them — to the kill list.

"People even refer to these as 'baseball cards' sometimes because it's essentially: Here's what the guy's name is, here's his age, here's his background, here's what we know about him, here's why we think he's a dangerous terrorist. And then it's all kicked around on this secret — but fairly open within the government — process where an agency, perhaps on the periphery of this, like the State Department, can say, 'You know, we think that guy is not important enough to kill,' or, 'We have different information. We don't think he's that bad,' or, 'We think if you took a shot at him it would disrupt our relations with such and such a country, and we don't think it's worth it.' There's really kind of a debate which ends up with either a name on the list or a name not on the list."

On what would it mean if countries not allied with the United States had their own drone programs

"The very interesting question that has arisen as the U.S. has pioneered this technology is: What happens when the Russians, say, send an armed drone into Georgia to the south claiming that there's a Chechen terrorist that's hiding in Georgia? And they have no other way to kill him and so they're going to kill him with a drone missile?

"It's going to be a very interesting moment internationally and for the United States, because the Obama administration — if that's who's in power — is going to have to say, 'We accept this because they're doing exactly what we do,' or they'll have to somehow make a distinction between what the Chinese or Russians are doing and what we've done in the past.

"I think there's increasing awareness that they are setting a precedent for the rest of the world, and I think that's another reason that the administration and John Brennan in particular have been working on a set of rules, because there's this sort of increasing awareness that they are the model for whatever's going to happen with this technology in the future."

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

TERRY GROSS, HOST:

This is FRESH AIR. I'm Terry Gross. The story that the Obama administration has a kill list of terrorists targeted for drone attacks, a list personally approved by the president, was revealed in the New York Times by my guest Scott Shane, along with Jo Becker. Shane is a national security correspondent at The Times. The principal coordinator of the kill list is John O. Brennan, President Obama's counterintelligence advisor who is now seeking confirmation to head the CIA.

Last week, just before the confirmation hearing, Shane co-wrote an article revealing that drone strikes have been launched from a U.S. base in Saudi Arabia. Several news organizations had known for months about the location but had been sitting on the information at the urging of the Obama administration.

Navigating this terrain between national security and the public's right to know led Shane and Times reporter Charlie Savage to file a lawsuit under the Freedom of Information Act to get access to a Justice Department memo that gives the administration's legal justification for the drone strike that killed U.S. citizen Anwar al-Awlaki in Yemen. That suit was filed in December of 2011.

Last week, the Obama administration released that memo to members of the Congressional Intelligence Committees after a shorter white paper about those legal justifications was leaked to NBC News.

Scott Shane, welcome back to FRESH AIR. So let me start with the very important article you co-wrote last week. That was an article about drone strikes and how they're likely to figure into the Brennan confirmation story. Within that story, you broke some major news, which is that drone strikes in Yemen have been - including the one that killed Anwar al-Awlaki - have been launched from a secret American base in Saudi Arabia.

Why is this revelation about the secret base such big news?

SCOTT SHANE: Well, you know, it's sort of a journalistic story. When Anwar al-Awlaki, the American-born Yemeni cleric who famously is the first American citizen to have been deliberately targeted and killed in one of these drone strikes - when he was killed in September of 2011, you know, we and others learned that the drone had been launched, had taken off from a base in Saudi Arabia.

And the government asked, the Obama administration asked us not to use that information and asked others not to use it. And the explanation was essentially that it would interfere with sort of ongoing operations and, you know, potentially spark a backlash in Saudi Arabia that would cause the Saudi government to shut down the base and, you know, kick out the Americans.

And we, you know, certainly way above my level, folks at the - my bosses decided to go along with that request and withheld the information. But it, you know, it popped up elsewhere on the Internet, and we and others were using the phrase: a drone base on the Arabian Peninsula.

So it was - you know, we, you know, eventually our editors decided that we really should not be withholding it anymore. It didn't seem that the, you know, that the reasons the government was asking us to withhold the information were really adequate to cause us to keep something out of the paper.

And so when we were writing about drone strikes in Yemen in connection with the confirmation hearings for John Brennan as CIA director, we decided to put it in there.

GROSS: Why didn't you think that the Obama administration's reasons for keeping this story quiet were adequate? And here's why I ask. Apparently, Saudi Arabia was afraid that if it became public, there'd be a backlash. But also they might be afraid of terrorist attacks because, you know, bin Laden was furious when there was an American base in Saudi Arabia. And so I can easily imagination al-Qaeda planning attacks against Saudi Arabia because of the revelation of this drone base there.

SHANE: Well, those are indeed the two reasons that were given to us by administration officials over, you know, many months on several occasions, but, you know, oddly enough in the Internet age, it seems very hard to keep a secret - harder to keep a secret - and this information has been sitting on the Fox News website.

I don't know if they ever said it on the air on Fox News, but the fact that there was a U.S. drone base in Saudi Arabia has been on Fox News website for many months. It was reported actually before the death of Awlaki in the Times of London along with a couple of other supposed drone bases that we actually do think do exist.

But, you know, if you Googled before any of this came out in various papers including ours last week, you could Google Saudi and drone, and you would come up with multiple references to a drone base. So that was also part of the thinking.

But, you know, we - you know, we're a newspaper, and we're always inclined to publish things unless there's a really compelling reason not to.

GROSS: Now, not only did the New York Times know about the secret Saudi drone base, a couple of other journalistic organizations knew about it too, and decided because the Obama's administration request not to publish. So - and I think one of those was the Washington Post. Am I right?

SHANE: I think that's right. I think maybe the Wall Street Journal was one.

GROSS: Yeah, so were they angry with The Times, that the times went forward while they continued to sit on the information as the Obama administration had asked them to?

SHANE: Well, actually what happened was when we informed the administration that we intended to use the location of the base in Wednesday's paper, which would mean it would go up on the Web normally Tuesday night, the, you know, national security officials called around, as, you know, an understandable thing to other publications that had been withholding that information and said you're free to use it because The Times has said they're going to use it.

And so I believe that it was up on the Washington Post site before it was up on ours because we only posted our story online after the Post had already posted a story about the Saudi base. So, you know, despite our stating that we were going to use the information, I think in the end we were not the first to sort of break this informal embargo that had gone on for many months.

GROSS: How did you feel about that?

SHANE: I mean, I - you know, the competitive part of this didn't bother me particularly one way or the other because I don't think the location of the base is the most interesting part of the story. The most interesting part of the story is how are we using a new military technology in countries where we're not at war to kill suspected terrorists, how's that going, what are the, you know, sort of long-term consequences, is this the way we'll sort of be dealing with multiple problems perhaps even beyond terrorism in the future.

Those are the questions that interest me. Whether the drones fly out of Djibouti or fly out of Saudi Arabia or fly out of somewhere else, you know, it's certainly worth noting, but I don't think it's necessarily the, you know, the most interesting question about this.

GROSS: So part of that same story was about how, for instance, in one of the drone strikes a couple of members of al-Qaeda were meeting with a Muslim imam who had just preached against al-Qaeda, and they asked to meet with him afterwards. And this imam was killed, along with the members of al-Qaeda, and you offer that as an example of a drone strike that's killing exactly the kind of person we should be working with, the kind of person we should be happy is around but is now no longer around.

Do you think that's a fairly representative example of the kind of problem we're having with drone strikes?

SHANE: I think it is representative of, you know, how a drone strike can go wrong. But I think that case was so interesting because it shows the dangers of operating from the air even when you have reasonably good intelligence. Obviously, they had good enough intelligence to know that three members of al-Qaeda were having a meeting.

What they apparently did not know, at least according to the reporting of my colleague Bobby Worth, who actually talked to folks in Yemen about that, what they did not know was that the two other people at this meeting of five men were this anti-al-Qaeda imam and another guy who was a police officer he brought along for protection, essentially, because he was, you know, meeting with three militants; didn't know, you know, what that meant exactly.

And, you know, you can kind of imagine what the thinking might had been at the military or at CIA. We don't know always who's carrying out these strikes, whether it's the CIA or the Joint Special Operations Command of the military. But you can imagine they're saying, well, there are three guys we know are al-Qaeda, and they're having a meeting and, you know, there's two other men there, and, you know, as far as we can tell, you know, they're militants, too.

You know, and so someone has to make a decision, and they say, you know, take the shot. But the consequences, the aftermath of that, you know, you can imagine is quite damaging to the U.S. Not only have they lost this voice against al-Qaeda at the local level, but the relatives of the imam, the relatives of the police officer, have every reason to be extremely angry about this.

Whether the net impact of killing three al-Qaeda guys was worth the obvious backlash and the elimination of people who are actually on the side of the U.S. in this fight is a very good question.

GROSS: If you're just joining us, my guest is Scott Shane. He covers national security for the New York Times. Let's take a short break here, and then we'll talk some more. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: If you're just joining us, my guest is Scott Shane. He writes about national security for the New York Times. Scott, let's back up to last May, when you and Jo Becker of the Times broke the story that the Obama administration had a targeted kill list and the people being killed by drones and that the names on this targeted kill list were being approved by the president himself.

Is there anything you can tell us, without breaching the confidentiality of sources, about how you got onto the story about the president approving the names himself?

SHANE: Well, we set out to essentially do a big story on Obama's counterterrorism record in connection with the upcoming election to sort of, like, what's his record been in various areas, and this was the areas of counterterrorism in his first term. And so we talked to a lot of officials current, to the degree that they would talk to us, and former, and we - you know, perhaps the most striking thing that we learned was the degree that President Obama had decided to become involved in approving these counterterrorism operations.

And I think the administration, President Obama, John Brennan, his counterterrorism advisor who's deeply involved in all this stuff, would say that they saw them - their role as a restraining influence in an area where they're taking on immense responsibility - in other words, they're carrying out what may not be under the technical language of American law an assassination, but essentially they're killing people deliberately overseas in places where we're not at war.

That's a very unusual thing to be doing, and it also is politically obviously extremely volatile. There's always the old question that Don Rumsfeld, when he was secretary of defense, once raised in a memo of, you know, are we creating more terrorists than we're killing or capturing? So he wanted - President Obama - we were told, wanted to be very hands-on.

He insisted on approving all strikes outside of Pakistan, this is at least at that point, I think it may be, his role may be a little more hands-off now than it was back in May when we wrote about this, but he also wanted to sign off on the more high-risk strikes in Pakistan, which we were told amounted to perhaps a third of the strikes in Pakistan.

But it was, you know, it was quite extraordinary in the sense that you had actual target approval by a president. You usually think of this stuff as being distanced from the president, you know, maybe the president given as they used to say plausible deniability or at least sort of, you know, his hands kept clean of the details of this kind of thing.

But he insisted on being very involved, and that has all kinds of I suppose political reverberations both good for him and perhaps bad for him.

GROSS: You know, a lot of people have interpreted this as being really horrible, the president himself is approving targeted assassinations. The flipside of that, which is I think the side that the Obama administration has used to justify this, is that we're going to be doing this, the president himself wants the final moral responsibility so that he can know what's going on and feel that it's justifiable.

Have, like in your analysis, have you come to see one side more than the other?

SHANE: Well, I think the motivation was very much the latter. I don't think it's that he's, you know, bloodthirsty and really enjoys trying to put people's names on lists to be killed. I think there's a certain wariness, probably a proper wariness, that any president would have toward agencies.

Agencies, you know, kind of want to do what they are good at doing or what their job is. So, you know, certainly according to what we've heard, both the CIA and JSOC as it's called - the element of the military that does these strikes - are pretty aggressive. They want to, you know, they want to find targets and kill them.

And so I think the role that President Obama assigned to the White House was - and to himself was really one of restraining the agencies, double-checking the agencies, making sure that at this sort of broader strategic political level that there was good judgment being exercised, that you weren't taking a shot in a very marginal situation for a marginal gain and risking a big backlash that would put the United States in a worse position.

GROSS: So with a story like this, did you tell the White House that - did you or the editors of the New York Times tell the White House before publishing?

SHANE: We talked to the White House throughout the reporting process because we were trying to talk to as many people who had - you know, obviously this was not a new topic, the topic of targeted killing and drone strikes and so on. And what we wanted to get a better handle on was what Obama's personal role was, what his own involvement was, what his views were.

So that meant talking to as many people who had contact with him in this context as we could. Most of those people were obviously at the White House. Some were at other agencies. Some were former officials, who usually are more chatty than current officials. So we talked to all those people. So the White House was quite aware that we were doing the story in the two or three months that we worked on it.

And we sought an interview, among others, with President Obama, didn't get one, sought interviews with Tom Donnell and the national security advisor, with John Brennan, the counterterrorism advisor, and did get those. So yeah, they were quite aware that we were running the article. My impression after it ran was that they were a little concerned about the emphasis on President Obama's personal role in approving some of these targets for targeted killings that indeed as you suggested it was being interpreted in some quarters as almost sort of, you know, the killer president, the sort of bloodthirsty president and that, you know, that that was being misconstrued, that his role was really the opposite of that and that perhaps that hadn't come across adequately in the article.

GROSS: So as you have pointed out, you report the story, and then a lot of people read it too quickly, misinterpret it and then go on their blogs and give their misinterpretation to the world.

(LAUGHTER)

GROSS: So what are some of the worrisome misinterpretations that your story got?

SHANE: Well, I guess the kind of parody version was that Obama would call a meeting. There was some confusion of different meetings. There's a meeting, a weekly meeting on terrorism on Tuesdays, which is sometimes referred to as the terror Tuesday meeting. And, you know, I think some people wrote that Obama, you know, gathers everybody on Tuesday and then tells them who he wants them to kill.

And obviously that's not, that's not what happens. I mean, as far as we are able to tell in this very secretive process, there's one process for the military, which is quite interesting because it can involve as many as 100 people watching on video monitors in multiple agencies, and somebody presents a set of possible targets. These are individuals, nominations as they call them, to the kill list, and people even refer to these as baseball cards sometimes because it's essentially here's what the guy's, you know, name is, here's his age, here's his background, here's what we know about him, here's why we think he's a dangerous terrorist.

And then it's all kicked around, you know, in this secret but, you know, fairly open within the government process where an agency, perhaps on the periphery of this like the State Department, can say, you know what? We think that guy is not important enough to kill, or we have different information, we don't think he's that bad, or we think if you took a shot at him, it would disrupt our relations with such and such a country, and we don't think it's worth it.

And there's really kind of a debate, which ends up with either a name on the list or a name not on the list. But, you know, part of what John Brennan has been doing for many months now is overseeing a process where they're trying to write more clear rules for these strikes, when they're justified, when they should take place, who should do them and so on.

It's, you know, unfortunately like almost everything in this area, it's a secret book of rules that's sometimes referred to in the government as the playbook, and it's still a work in progress. But even at the White House, there's a sense that they are sort of pioneering a new kind of warfare, a new kind of, you know, organized violence against suspected terrorists and that they need to make sure there are clear written rules for how it should be done.

GROSS: Scott Shane will be back in the second half of the show. He's a national security correspondent for the New York Times. I'm Terry Gross, and this is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: This is FRESH AIR. I'm Terry Gross back with Scott Shane, a national security correspondent for The New York Times. He and Times reporter Joe Becker broke the story that the Obama administration has a kill list of terrorists abroad targeted for drone attacks - a list personally approved by the president. In this and other related stories that have revealed formerly secret information, Shane has had to think about the line between national security and the public's right to know.

Last week, Michael Isikoff broke the story about a white paper that was leaked to him that summarized some of the justifications for the drone strikes and for having drone strikes without judicial review - drone strikes against American citizens in other countries who are considered terrorists. But there's a larger document, offering the legal justification for the drone strikes, that you've been trying to get your hands on. In fact, you sued the government through the Freedom of Information Act to get access to these governments and so far you've been denied, not only by the government but by a judge.

So describe what you know about the document that you are suing to get.

SHANE: Well, the document is a long memo prepared by the Office of Legal Counsel, which is part of the Justice Department. It's essentially the government's last word on what the law says. So when somebody wants to do something novel and, you know, in a way extreme, such as kill an American citizen in another country without trial, without, you know, criminal charges as part of a counterterrorism operation - OLC, as it's called, the Office of Legal Counsel - are the lawyers who you go to, to say, you know, can we do this? Is this legal? And they spent months on an opinion which was prepared in 2010, specifically about Anwar Awlaki, the American-born cleric in Yemen who had joined al-Qaida, and essentially laying out both the facts about Awlaki's, history, his involvement in, not only propaganda, in favor of terror strikes to kill Americans, but also his personal involvement in the so-called underwear bomber attack, that jetliner over Detroit that was a young Nigerian man tried to blow up. And so they laid out not only the facts but a lot of law. And this, you know, I don't know exactly how long this memo is - probably 75, 100 pages - and it kind of made sense for us to try to get a hold of it - just as we and other the news organizations under President Bush had tried to get a hold of the OLC memos - as they're called - justifying brutal interrogation techniques.

GROSS: So on what grounds have you been denied access to the memo?

SHANE: Well, the government came up with a lot of different reasons. Under the Freedom of Information Act there are various exemptions and they claim that this is classified, you know, the information is too sensitive to be let out and they claim various other exemptions for internal deliberations. And for the president to get sort of candid legal advice he can't be having these legal memos sort of shown to the world. And the judge who wrote the opinion ruling against us and against the American Civil Liberties Union, who filed a similar lawsuit, seemed quite frustrated with the situation that she found herself in. She described it as an Alice in Wonderland kind of moment. But she's...

GROSS: Let me step in. I'll quote what she said. She said, it's an Alice in Wonderland - she referred to the Alice in Wonderland nature of her decision. And she said "but I can find no way around the thicket of laws and precedents that effectively allow the executive branch of our government to proclaim it's perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws, while keeping the reason for their conclusion a secret.

SHANE: Yeah, that's - I mean that was quite interesting. You know, I know that courts for decades have tended to defer to the executive branch on questions involving national security and judgments, for example, on what should or should not be classified. Judges rarely substitute their own judgment for those of executive officials on those issues. So essentially the judge was saying, if the Obama administration doesn't want to make this memo public it doesn't have to. We have appealed that decision, as has the ACLU so we'll see what happens at the appeals level.

GROSS: So what did you find most interesting about the white paper relating to this memo that was leaked last week?

SHANE: Well essentially, it says that if America is a leading member - a leader of al-Qaida - and is plotting, you know, against the U.S. to try to Americans, and that the capture of the person is infeasible, you know, sort of whatever that means, that it is permissible, it's legal to go ahead and kill them. The, you know, it touched on a number of different justifications but the all along the administration has claimed two different sort of theories by which they could kill members of al-Qaida and associated forces in other countries. One is that they say we are at war with al-Qaida and associated forces. And so in that sense it's not like unlike killing a German American who had decided to fight with the Germans in World War II, we're just killing a member of the enemy, but and citizenship is irrelevant.

But the sort of backup argument is one of international self-defense. And this is partly necessary because a lot of other countries don't accept the idea that the United States is at war with a terrorist group. So their sort of plan B, legally speaking is that if you under international law have a right to self-defense. If someone is about to attack you, you're allowed to attack them first, essentially. So if we know that Anwar al-Awlaki was plotting against the United States to kill a lot of Americans, we could under international law legally target him and kill him to prevent that attack.

The where that becomes, the two points that become debatable, one is the question of whether the attack is eminent. And one thing this white paper laid out is that is a sort of stretched definition of eminence, rather than meaning that he literally is in the process of, you know, launching an attack, sending a, you know, and underwear bomber, making a phone call somehow, you know, beginning the process of an attack on the United States, the definition of eminence that the government has adopted is simply that these are guys, Anwar Awlaki, other members of al-Qaida, these are guys who want to attack America and will do it at their next possible opportunity. So that in that sense they're always a threat, the threat is always eminent. That, of course, has never been tested in a court, but that's their claim.

And then there's the second issue of feasibility. How feasible it to capture someone? If it is feasible for you to capture them, you're supposed to capture them. And, you know, in this case the argument would be that Awlaki was out in the tribal areas of Yemen. It would be extremely dangerous and perhaps impossible to catch them without loss of American lives or Yemeni lives on the part of the team that was sent to capture him.

GROSS: So you're in the process of appealing a judge's decision that denied you access to a memo you're trying to get from the Justice Department's Office of Legal Counsel, a memo justifying the drone strikes against American citizens believed to be affiliated with terrorist organizations. So when do you think the next step will happen? Like you're appealing, when is that going to go to court?

SHANE: It will be months. So, you know, we're not holding our breath. We're certainly, you know, pursuing the case and coming up with, you know, the best arguments that we can to try to get an appeals court to rule in our favor. But it is tough because the courts almost always defer to the executive branch in terms of what should be secret. They don't usually step in and say well, it's ridiculous that it's a secret; you have to declassify it. They differ on those grounds, so it's tough. And, you know, I think that, you know, the other route would be there is considerable pressure now, certainly on the administration, to share this OLC memo with more people. They started last week under, you know, considerable pressure from Congress, by making the memo available to members of the House and Senate Intelligence Committees - although, interestingly not to their staff members, who obviously are the ones who have more time and sometimes more expertise to devote to reading something like this. But at least the senators and representatives who are on the intelligence committees can look at this memo for the first time. It's remarkable in a sense because those committees were created in the late '70s to be the kind of eyes and ears of the American public over the activities of the secret agencies - the oversight committees, the watchdogs, but the government had taken the - the Obama administration had taken the position that even the members of those committees were not permitted to see this memo, which they sought for many months and only caved on that, you know, on the eve of John Brennan's confirmation hearing.

GROSS: Are you hoping that somebody is going to leak this to you?

SHANE: ., you know, I would love that. People can look up the address of the bureau and...

(LAUGHTER)

SHANE: ...put it in a brown plain wrapper and put it in the mail. I think that would be great. Well, you know, people may remember way back in 2004, there was a very important memo - sometimes referred to as the torture memo, one of the torture memos, that was a parallel of OLC memo - a Justice Department memo - in that case justifying interrogation techniques like waterboarding, the sort of near drowning technique that was being used by the CIA under the Bush administration. And, you know, it was leaked and set off a huge public debate.

It's interesting to think back that the other big controversy in the Bush administration in the counterterrorism area, was the National Security Agency's domestic eavesdropping program, the warrantless wiretapping program, as it was sometimes called, which was also a top secret. No one knew about it until my colleagues at The New York Times got a, you know, got the information from sources and put it in the newspaper. So that also led to a huge, you know, year's long debate about the appropriate limits of government surveillance, just as the leak of the torture memos sort of set off a, you know, a debate that still going on with the movie "Zero Dark 30" about, you know, should the United States be engaging in torture or indeed coerce of any interrogation methods of any kind.

GROSS: If you're just joining us, my guest is Scott Shane. He covers national security for The New York Times. Let's take a short break here and then we'll talk some more. This is FRESH AIR.

(SOUNDBITE OF MUSIC)

GROSS: If you're just joining us, my guest is Scott Shane. He covers national security for The New York Times.

Have you asked yourself what it would mean if countries not allied with the United States had their own drone program?

SHANE: Very much. I mean and this is on the mind of officials at the White House, at the State Department, other places, because it's happening. I mean this is not a super sophisticated technology. The sophisticated part is the satellites that make it easier to, you know, control and locate these planes. But the planes themselves are, you know, not that terribly hi-tech and they basically have missiles strapped under their wings. So it's something that not only a state could do, but even a terrorist group could do.

The very interesting question that has arisen as the U.S. has pioneered this technology is: what happens the Russians send an armed drone into Georgia to the south claiming that there's a Chechen terrorists who's hiding in Georgia they have no other way to kill them and so they're going to kill him with a drone? It's going to be a very interesting moment internationally and for the United States because the Obama administration, if that who is in power, will have to say, you know, we accept this because they're doing exactly what we do. I think one, you know, there's increasing awareness on the part of American officials that they are setting a precedent for the rest of the world, and I think that's another reason that the administration and John Brennan in particular have been working on a set of rules because there is this sort of increasing awareness that they are the model for whatever is going to happen with this technology in the future.

GROSS: I want to ask you about another story you've been directly involved in and this is a story about the Obama administration prosecuting a former CIA agent for leaking. And there were two journalists involved in this case and you were one of them. You were officially Journalist B. So what was the Journalist B part of the story?

SHANE: Well, just to, sort of, set the stage for this, John Kiriakou is 48. He has been out of the CIA since 2004 but he served for about 15 years first as an analyst, then as an overseas, you know, undercover agent against terrorism, mostly in Greece and Pakistan. He is one of six people now who has been charged, criminally, with leaking classified information to the press under President Obama.

And this is attracting a lot of attention because, depending on how you define it, you might get slightly different numbers, but most people would agree that no more than three people had been prosecuted for leaking to the press in all previous administrations in the entire history of the United States. So it's (unintelligible) cases proceed.

And my involvement with John Kiriakou began, as did the involvement of many reporters with him, after he went on television on ABC in December 2007 and spoke with surprising candor about water boarding. He had been the leader of the team - the CIA team that captured Abu Zubaydah, a sort of terrorist training camp official and travel facilitator, who was considered, in 2002 when he was caught, to be, you know, sort of the biggest terrorist that they had gotten their hands on.

He had led that capture, but he had not been present for the water boarding. You know, when you have a CIA guy talking about water boarding on TV, you know, that's a fairly rare bird. I, like many reporters, called him up and got to know him. You know, I talked to him on a number of occasions after that.

What got him in trouble in his criminal case, when charges were ultimately brought against him in 2012, in January of 2012, was that he had given me a phone number that he had from a business card of another former CIA officer, a guy who had never worked undercover but who had worked in Pakistan with John Kiriakou.

That man's name was Deuce Martinez and he had become a fairly important interrogator, we were told, of al Qaida suspects. Well, the government took the position that even though Deuce Martinez was not undercover, his involvement in the interrogation - the capture and interrogation of Abu Zubaydah was classified. And that by essentially confirming to me, what I had already heard, which was that there was a guy named Deuce Martinez who had been involved in this, that Kiriakou was breaking the law, was disclosing classified information.

In the end, John Kiriakou pleaded guilty to one count that was actually something else. It was sharing the name of a CIA officer who wasn't still undercover with a freelance journalist, a different journalist. And so, the charge involving me was dropped. But it was still very much part of the case against him. And he has been sentenced to 30 months in prison and is expected to report to prison soon.

GROSS: I wonder if the fact that, you know, he was charged for what he told you and now he's going to prison because of a name he gave another journalist - I wonder if that and other related cases are having a chilling effect on your sources, or on you and your fellow journalists.

SHANE: I think it is having a chilling effect. It's extremely distressing, what's happened to John Kiriakou to me, personally, because I feel that I played at least some role in sending him to prison. And, as I tried to explain in a long piece that I did for the Times, what he did with me and even with this freelance journalist, was not nearly as unusual as it might seem if you read it in his indictment.

You know, for decades the journalists who try to cover national security in Washington are always operating at the fringes of classified information. When we write about drone strikes in Pakistan, technically speaking, that's a covert action. It's top secret. But we are able to get officials to tell us, you know, bits and pieces of information. And indeed, sometimes the government itself is quite inconsistent.

President Obama has given fairly detailed interviews to CNN about the drone program. He went on YouTube and Google+ and talked about it on the Web. So we're always operating in this, sort of, you know, this DMZ, this sort of gray zone between what's classified and what's unclassified. And so it's not unusual for someone to give you the name, even of an undercover CIA officer.

Not so that you can publish it but so that you can approach that - you can find that person, approach that person, and see if that person wants to talk to you. Usually on, as we call it, a background basis. In other words, you know, the person gives you the information but you don't attribute it to that person by name.

That's common way business has been done in Washington for many, many years. And it's the only way, frankly, we're able to write about these secret agencies and the activities that they perform with, you know, the money the American tax payer in the name of American citizens.

GROSS: OK. Scott Shane, thank you so much.

SHANE: Thank you.

GROSS: Scott Shane is a national security correspondent for the New York Times. Coming up, Maureen Corrigan reviews a new memoir by a teacher who was cyberstalked by a student. This is FRESH AIR.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Related Program