Via Mediaite, I wonder if Wyden knows that the U.S. did, kinda sorta, give Awlaki a chance to surrender. Remember?

About six months before alleged Al-Qaeda in the Arabian Peninsula leader Anwar Al-Awlaki was killed in a drone strike in Yemen last year, the U.S. moved to notify him that his American passport had been revoked, according to newly-released State Department documents.

Surprisingly, U.S. State Department officials appear to have instructed the U.S. Embassy in Yemen to invite the suspected terrorist to come to the embassy to receive “an important letter regarding [his] U.S. passport.”…

It’s unclear from the documents whether the embassy ever actually sought to contact Anwar Al-Awlaki or succeeded in doing so. It’s possible that the attempt to reach out to Al-Awlaki was part of an internal effort by the Obama Administration to provide a form of due process to U.S. citizens targeted for the use of deadly force.

Brennan rambles in response but his point is clear enough: If you join Al Qaeda after 9/11, how do you not know that the U.S. is eager for your surrender? Was it somehow ambiguous in Awlaki’s mind that the White House wanted him off the battlefield? Wyden’s imagining a scenario, I think, where an American is plotting overseas against America and doesn’t realize that the United States government is aware of it. You can imagine that happening with a new, unknown terrorist group, where giving the mastermind a heads up that he’s on the radar might (but probably won’t) encourage him to quit. You can’t imagine it happening with AQ, which of course is why Brennan is so eager to address the specific case of AQ and only AQ. Once you get into hypotheticals involving as-yet undeclared enemies of the U.S., the ground he’s standing on gets much shakier.

The AP has a nice summary of his testimony today, none of which is likely to derail his confirmation. Although this part, where he played dumb about enhanced interrogation, was cute:

On the question of waterboarding, Brennan said that while serving as a deputy manager at the CIA during the Bush administration, he was told such interrogation methods produced “valuable information.” Now, after reading a 300-page summary of a 6,000-page report on CIA interrogation and detention policies, he said he does “not know what the truth is.”

Fred Kaplan’s reply: “The fact that Brennan has been President Obama’s senior adviser on counterterrorism these past four years, and yet found material in the Senate report that he had not known before, material that makes him now think he might have been wrong—this in itself is rather disturbing.” Well, no, not unless you think Brennan was telling the truth when he said he was newly ambivalent about EITs. If you assume that he’s patronizing Democrats by telling them what they wanted to hear, it’s perfectly sensible. Another fun moment: Brennan is eager to move command and control over drone strikes from the CIA to the Pentagon since blowing up terrorists is really more of a military job. Which means the man in charge of preventing terror attacks by liquidating the people who are planning them will soon be … this guy.

Now, go read Ace’s post about assassination power and outlaws, which is what we’re really talking about when we talk about summary execution of malfeasors. I agree that there needs to be some sort of check on the president in exercising this power; I’m just not sure that it should be Congress, which was so squeamish about having to take a vote on intervening in Libya that they all but endorsed Obama’s flouting of the War Powers Act. Politicians will almost always err on the side of authorizing a drone strike because the political consequences of attacking and screwing up by killing innocent foreigners are less severe than the consequences of not attacking and then having to explain yourself if/when the would-be target launches an attack that kills innocent Americans. That’s a brutal calculus, but that’s how it is. (Waiting for Congress to formally declare war on an individual would also give that individual time to go to ground, although if you insist a la Wyden on a formal demand for surrender, then you’re going to run into that problem anyway.) If you let a judge do this instead, then you’ve got someone who’s insulated from political pressure deciding on whether the “kill warrant” has merit or not. That’s not ideal either — more insulation means less accountability to voters, which is a scary prospect when we’re talking about targeting U.S. citizens — but I’ll bet Congress would rather have it that way than arrogate this review power to itself. We’ll see.