In the revamp of his national security team for a second term, President Obama gets a mixed review. Barring an unlikely presidential post-re-election epiphany leading to a radical scaling back of the American Empire, Obama probably got the best mainstream candidates for Secretary of State and Secretary of Defense that could be had. Both John Kerry and Chuck Hagel, respectively, fought in actual combat on the ground during Vietnam and have exhibited—despite some lapses—at least some restraint in exposing U.S. fighting men and women to pointless wars of choice in the developing world. John Kerry is vastly superior in experience and policy orientation to Susan Rice, who would have been more prone to involve the United States in nation-building wars abroad. Chuck Hagel is vastly superior to Michele Flournoy, a pleasant but unimaginative defense bureaucrat.

Hagel may have a bumpy ride to confirmation simply because he is not slavishly supportive of Israel. The Israeli lobby is trying the old Washington trick of pinning “scandal” on a qualified nominee by making Hagel’s slips of the tongue an issue. The lobby is implying that Hagel is anti-Semitic. This familiar ploy almost always diverts attention from the real issue of whether the United States should be lavishing support and welfare of more than $3 billion a year on a wealthy country (or any country) that can and should be providing its own security. The lobby has nixed other fine Obama nominees, but may not be able to sink Hagel, who will probably be confirmed. If he is approved, he will, within limits, reinforce Obama’s laudable tendency to occasionally push back against Israel’s hawkish Prime Minister Benjamin Netanyahu.

However, the Senate should nix Obama’s selection of John Brennan, the White House’s top counterterrorism aide, to be CIA director. In typical Washington fashion, however, Brennan has gotten more bi-partisan support than Hagel and is likely to have less trouble getting confirmed.

Allegations have surfaced that Brennan approved—or failed to object to—torture during the Bush administration. He denies such accusations but bowed out for being considered for the same job four years ago because of them; his former colleagues at the CIA don’t remember his objections to such illegal acts. Also, Brennan has spoken out publicly in favor of the U.S. practice of “rendering” (read: kidnapping) terror suspects to face torture in allied countries. The Senate needs to examine these allegations in detail and also any role he had in approving or acquiescing to the CIA’s network of secret prisons.

One thing that is clearer and should be a show-stopper for Brennan’s nomination—but probably won’t be—is his participation in the unconstitutional counterproductive drone wars in Pakistan and Yemen. In fact, he is the architect of the Obama administration’s secret counterterrorism operations in Yemen.

Both of these operations have strayed into the unconstitutional realm. Congress’ post-9/11 authorization of the use of military force in 2001 allowed the U.S. to take armed action against any individual or group that was involved in the 9/11 attacks or any nation that harbored them. Thus, the authorization would allow U.S. attacks into Pakistan, including drone strikes, if the targets were al Qaeda fighters or members of the Afghan Taliban. However, Brennan’s drone campaign has also attacked the Pakistani Taliban, which was formed only after 9/11 and focuses its attacks on the Pakistani government. U.S. attacks on the Pakistani Taliban are therefore unconstitutional, because Congress has not authorized them. They are also counterproductive, because that group, which never previously attempted to attack the United States, is now trying to conduct retaliatory attacks on U.S. soil (the Times Square bombing). Brennan’s anti-terror war in Yemen is also unconstitutional because the American attacks are on al Qaeda in the Arabian Peninsula, a regional al Qaeda affiliate that had nothing to do with the 9/11 attacks. This anti-terror war has also been counterproductive, creating a new enemy that has now attempted multiple retaliatory anti-American attacks—including the attempted underwear bombing of an American civilian aircraft.

Finally, the targeted killings in Brennan’s drone campaigns have even involved the assassination of Americans using secret legal reasoning as justification. Because no constitutional war is being fought, denying Americans due legal process before deciding to put them to death is highly questionable.

For his role in the unconstitutional drone campaigns and targeted assassinations of Americans without any proper due process, the Senate should vote “no” on Brennan but probably won’t.