Transcript: Professor Rosa Brooks’s testimony on drones & targeted killing – Senate Judiciary Subcommittee on April 23, 2013

Partial transcript of testimony by Rosa Brooks, Professor of Law at Georgetown University Law Center, on the “Drone Wars: The Constitutional and Counter-Terrorism Implications of Targeted Killing”. The Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights hearing was held on April 23, 2013:

…In the context of the traditional battlefield, I think as we know and have already said, drones do not present any new legal or rule of law issues.

It’s in the context of places such as Somalia, Yemen, et cetera – outside of the traditional so-called “hot battlefields” – that we’re suddenly presented by significant problems to the point in which I think the use of U.S. targeted killing policy as currently understood appears to both challenge the legal frameworks that exist and potentially dangerously undermine the rule of law – not because of some conspiracy or lack of concern but I think we’re just faced with a situation where the fit between the law and the legal frameworks we have and the situation on the ground isn’t very good any more.

So the idea of the rule of law as you and Senator Cruz both said is to protect people from the arbitrary exercise of government power. In ordinary circumstances, we all know that that means the government can’t come and take your property or your liberty or kill you without some sort of due process. And similarly, we believe that the government can’t use force to kill someone in the borders of another state without that state’s consent and without appropriate judicial process.

Obviously, there are situations where ordinary rules don’t apply, though, such as in wars. In the context of wars or armed conflicts, the law of armed conflict tells us that it’s acceptable to kill whether by slingshot, gun, or drone.

The problem here is that we have two different bodies of law which have radically different rules concerning due process and the use of force by the state. In the law, we call this lex specialis and lex generalis. The lex specialis being a fancy Latin term to talk about special law applying only in special circumstances – in this case, armed conflict – law of armed conflict. The lex generalis being the general law that applies in general circumstances or ordinary peace time.

Now, that’s not necessarily a problem to have two radically different sets of rules that apply in different situations. It’s not necessarily a problems as long as we’re pretty clear on how we know the difference between when one set of rules applies and the other set of rules applies.

Now, on the traditional battlefield, it’s pretty clear. You have uniform soldiers. You have open acknowledgement of the armed conflict. You can have objective observers such as journalists saying, “Yes, it looks like there’s a large-scale armed conflict here.”

On the other hand, once we get off that traditional battlefield, when we’re looking at a inchoate…enemy, such as a geographically-dispersed globalized terrorist organizations, it become very, very hard to say, “Here’s where the armed conflict is. Here’s where the armed conflict isn’t. Here’s who’s a combatant. Here’s who’s not a combatant.” All of those legal framework just start breaking down.

The problem we now have is that nobody outside a very small group within the U.S. executive branch knows how we’re making those decisions about who’s a combatant, where’s the war, et cetera. It’s not like World War II. Also, the information and the process are classified so it’s just very, very hard to get a grip on what basis for making any decisions.

That means that all of our core rule of law questions in which we figure out how we even know what body of law applies are unanswered.

What’s the criteria for determining who’s a combatant or who is an affiliate of Al Qaeda? What does that mean?

Where is the war? Does law of armed conflict travel anywhere a combatant travels, making it applicable anywhere?

What about sovereignty issues? Does it matter if a state doesn’t consent?

Who decides if a state is unwilling or unable to take appropriate action?

Who in the U.S. executive branch makes the decisions? What’s the chain of command? What are the mechanisms for ensuring that we prevent abuses?

This is a deep problem, as I said. I don’t think this is a problem of lack of good faith on the part of officials. This is just a problem when we have a concept like armed conflict and it gets squishy enough that we can use that same term to talk about World War II and what’s going on right now with regard to Al Qaeda and its affiliate. Frankly, that’s a term that’s not doing a lot of useful work anymore.

What it means in practice is that we just lose any principle means of categorizing a targeted killing.

Should we call them lawful targeting of combatants? Lawful under the law of war? No problem if that’s the case. Or should we call them murder – extrajudicial killings as many human rights group have asserted? We don’t have a principle basis for deciding anymore.

I also worry very much about the precedent we’re setting for other less scrupulous states, such as Russia, China, et cetera…

I think what it comes down to, Sen. [Dick] Durbin, Sen. [Ted] Cruz, is that right now we have the executive branch making a claim that it has the right to kill any one, any where on Earth, at any time for secret reasons based on secret evidence in a secret process undertaken by unidentified officials. That frightens me. I don’t doubt they’re good faith but that’s not the rule of law as we know it.

In my statement submitted for the record, I do suggest a number of reforms that might improve our ability to ensure oversight and accountability…

And I’ll just leave you with this final thought for now which is that I believe that it is absolutely possible to make a plausible legal argument justifying each and every U.S. drone strike but to me this just suggests that we are working with a set of legal concepts that have outlived their usefulness. If law exists to restrain untrammeled power, then the real question for us is not whether U.S. targeted killings are all legal. The real question is this: Do we want to live in a world in which the U.S. government’s justification for killing is so infinitely malleable?

Thank you very much.

###

Learn More:

9 Comments on “Transcript: Professor Rosa Brooks’s testimony on drones & targeted killing – Senate Judiciary Subcommittee on April 23, 2013

  1. Pingback: Spotlight: U.S. Drones & Targeted Killing | What The Folly?!

  2. Pingback: Transcript: Q&A with Sen. Mike Lee on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

  3. Pingback: Transcript: Q&A with Sen. Richard Blumenthal on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

  4. Pingback: Transcript: Q&A with Sen. Al Franken on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

  5. Pingback: Transcript: Q&A with Sen. Ted Cruz on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

  6. Pingback: Transcript: Q&A with Sen. Dick Durbin on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

  7. Pingback: Transcript: Yemeni activist Farea Al-Muslimi's testimony on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

  8. Pingback: Transcript: Peter Bergen's testimony on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

  9. Pingback: Transcript: Professor Ilya Somin's testimony on drones & targeted killing - Senate Judiciary Subcommittee on April 23, 2013 | What The Folly?!

Leave a Reply

Your email address will not be published.