“One of the problems is, once the drone program is so public, and one American is caught up, people don’t know much about this one ‘American citizen’—so called,” said Senator Dianne Feinstein, in her questioning of John Brennan, President Obama’s nominee for C.I.A. director, on Thursday. (John Cassidy has more on the hearing.) She was referring to Anwar al-Awlaki, who was killed by a drone strike in Yemen, in 2011, and was a “so-called” American because he was an American, born in New Mexico. “They don’t know what he’s been doing,” Feinstein continued. “They don’t know the incitement he has stirred up. I wonder if you could tell us a little bit about Mr. Awlaki and what he’s been doing.”

Brennan demurred at first, since the question was about an “operation.” Feinstein jumped in:

See, that’s the problem. When people hear “American,” they think someone who’s upstanding. And this man was not upstanding by a long shot.

BRENNAN: Yes.

FEINSTEIN: And maybe you cannot discuss it here, but I’ve read enough to know that he was a real problem.

Brennan agreed, saying that al-Awlaki “was intimately involved in activities that were designed to kill innocent men, women, and children, mostly Americans. He was not just a propagandist.” (He neglected to mention that al-Awlaki’s American teen-age son was also killed, in a separate strike.) Feinstein then led him through a number of incidents; in some cases, Brennan agreed that al-Awlaki was an organizer, and in others he spoke obliquely about “inspiring” and “inciting individuals.” Feinstein summed up the exchange with what may have been the most disturbing line in the three-hour hearing, worse, even, than the waterboarding joke that Senator Burr told a few minutes later:

“And, so, Mr. Awlaki is not an American citizen by where anyone in America would be proud.”

“Proud,” “upstanding,” “so-called American”—is this the basis on which the Senate is judging fundamental questions of American rights and due process? Before the hearing, I wondered what picture of Americans we were supposed to have when we heard about the executive giving itself the power to kill them. Feinstein could hardly have given a less reassuring answer. When and on what basis will any of us get a “so-called” in front of our nationality? That there may have been a good deal of evidence against al-Awlaki is why his case should have gone before a court, not why it shouldn’t have. What happened to the idea that it is precisely when we are the most enraged, and the least popular, that we need to be the most careful?

The Obama Administration, as far as we’ve seen in a leaked Department of Justice white paper, is making a contradictory case: it claims that it is deliberate and careful, acting only when it must to say lives. But, when challenged, it descends into emotion and an abandonment of law. Angus King, the new Independent Senator from Maine—a white mustachioed, affable, Sandra Day O’Connor-quoting figure—asked why there couldn’t be something like a Foreign Intelligence Surveillance Act court that reviewed evidence before a strike. (Otherwise, what’s to stop the President from acting on, or making, unfounded accusations?) Brennan said that he’d be interested in talking about it, but then made a comment that goes to the heart of what’s so troubling about the Administration’s targeted-killing policies:

None of those actions are to determine past guilt for those actions that they took. The decisions that they made are to take actions to prevent a future action—to protect American lives. And that is an inherently executive function.

So the President gets to make guesses, perhaps about someone who has not done anything that wasn’t upstanding? It got more confusing when Ron Wyden, of Oregon, asked Brennan whether American citizens on a “kill list” should be given an opportunity to surrender. Brennan said that anyone who was in Al Qaeda “should know well that they, in fact, are part of an enemy against us”—suggesting that past associations are enough. The white paper seconds this, with a notion of people who are “continually planning” and, as has been much noted, has a definition of “imminence” and preventing “future actions” that is elastic to the point of meaninglessness. Nor does the white paper limit killing power to Al Qaeda—it includes vaguely defined “associated forces.”

If the hearing accomplished one thing, it was to make it very clear that the level of transparency and oversight have been insufficient. Brennan demonstrated this himself, in the course of dodging questions about what torture had yielded and cost us; he said that a classified Senate Intelligence Committee report had been “disturbing,” and had made him question much of what he thought he knew. (He mentioned “inaccurate information that was put forward.”) If someone in Brennan’s position can say that, the public needs to read the report before being asked to acquiesce the next time. It was also striking that the White House let the Senators but not their staffs see the legal memos that were the basis of the white paper.

Is Brennan angry about getting bad information about torture? Throughout the hearing, he offered his own passions as justifications—“I go to bed worrying that I didn’t do enough,” he said. (The passions were then justified with jokes about how he was from New Jersey.) Americans don’t understand, he said, “the agony we go through” to make sure that there aren’t collateral deaths in drone strikes. He may do so, but his internal pain is ultimately less interesting than the precedents he is crafting and the way that future Presidents—whether dispassionate or vindictive or caught up in a crisis—might use them. As Senator Jay Rockefeller said, “the drones are going to grow.”

There was, however, one point in which Brennan put his feelings aside. He was asked by Carl Levin if waterboarding was torture. Brennan said that, though in a personal sense he thought it was “reprehensible,” he couldn’t answer the question: “I’m not a lawyer.”

Photograph by Chris Maddaloni/Getty