Well, isn’t it remarkable that the White House’s legal justification for its drone war against terrorists was leaked just days before the Senate hearing of John O. Brennan as director of the Central Intelligence Agency?

Whether or not the passing to NBC News of the 16-page “white paper” ― based on a still-unreleased memo from the Justice Department on the September 2011 killing of the U.S. citizen Anwar al-Awlaki in Yemen ― was intended to help or hurt Brennan, it will certainly make for a more informed discussion of the U.S. drone war. It also helps answer some big questions about who in the government should run the program; what the scope of the attacks should be; and what alternatives President Barack Obama might consider.

The U.S. is, in effect, waging two different drone wars. One targets al-Qaida and its allies in the Afghanistan theater, primarily in Pakistan. As estimated from news reports by the New America Foundation and the Long War Journal, there have been 350 or so of these strikes since 2004, killing about 2,500 people, including 150 to 300 civilians. They are carried out by the CIA. Although such strikes are officially covert, they are such a well-known secret that Obama felt free to discuss them last month in a Google Plus “hangout.”

The second drone war is being waged by the Defense Department, which carries out strikes elsewhere, such as Yemen and Somalia. Operated by military professionals, trained in and bound by international and U.S. military law, this effort is much more appropriate.

In fact, the Pentagon’s Joint Special Operations Command should take control of the entire drone offensive. Limiting the CIA’s role to intelligence sharing and putting the program under Title 10 of the U.S. Code, which lays out the role of the military, would increase congressional oversight and transparency while still allowing necessary secrecy. And it would get the U.S. out of the ridiculous situation in which the only way for the administration to be honest with the public is to leak information about supposedly covert operations.

Then there is the question of how targets are chosen. Here again there are two basic types of strikes: those against people on the government’s “kill list,” and so-called signature strikes, which target unknown individuals because ground intelligence or aerial surveillance shows they are aiding an imminent terrorist threat. On the former, while many details of the kill list were already known, the leaked document shows how vague the criteria are for placing a U.S. citizen on it: that “an informed, high-level official” determines the American is a “continuing” threat. The Senate should push Brennan to be more specific.

Signature strikes present a more complicated issue. The reality of war is that one rarely knows the name, rank and serial number of the person on the receiving end of the bullet. In this war, the enemy frequently has no rank or serial number and an infinite supply of pseudonyms.

If critics of such strikes want to limit the number of mistaken attacks and civilian casualties, a far better idea is to find alternatives to drones. The leaked document holds that drone strikes are carried out when assaults by ground forces are “infeasible,” but that term is so malleable as to be meaningless. And if the goal is always to kill, that makes a drone strike all the more likely. Why risk boots on the ground?

The equation changes, however, if the goal is to capture and interrogate terrorists. At the moment, the government has no place to put them. Obama has sworn not to bring any more detainees into Guantanamo Bay, Cuba; Congress forbids the detainees from being brought into U.S. territory; and the administration has largely stopped sending suspects to third- party countries for interrogation.

Here is a question for the president, who swore on his first day in office to close the Cuban prison but has expended little political capital fighting Congress to get the job done: If suspected terrorists can’t be brought into the domestic U.S., why is reopening Guantanamo to new detainees worse than killing them?

The Brennan hearings and document leak should also bring a new focus to some underdiscussed aspects of the drone war. One is whether it increases the risk of retaliatory attacks against U.S. interests, and whether such strikes hurt U.S. soft-power and diplomatic efforts in the Muslim world.

To some extent these concerns are overblown; terrorists aren’t lacking for reasons to hurt the U.S., and public response to the drone war in those countries is hardly uniform. But by bringing the programs out from the CIA’s shadow, the U.S. could make the case for them more openly to the governments involved and to their citizens ― in the vernacular Urdu or Arabic.

The U.S. must also reckon with the inevitability of rival powers and nonstate actors developing their own drones. Given its global head start and leverage on the issue, the U.S. has an interest in leading an effort to codify the use of drones in the laws of war, as it did with nuclear weapons in the Cold War. Otherwise, reflexively anti-American international bodies such as the United Nations Human Rights Council, which last week announced a nine-month investigation into the drone campaign, will step into the vacuum.

Yes, the terrorists would ignore any global regime, and rogue states would try to buck the rules. Nevertheless, a framework for the use of drones would be better than a flying- robot free-for-all and would allow the U.S. to stake out the high moral ground.

(Bloomberg)