 A lot of you were here in the morning and met Rosa then, but I will introduce her again. Rosa Brooks is going to give a presentation entitled Flying Mission Creep, what we can learn from the Pentagon's history with drones. Rosa is a Bernard Schwartz fellow here at the New America Foundation, as well as a professor of law at Georgetown University, a columnist for Foreign Policy Magazine, and she is now going to give us a presentation. Okay, thank you, Andres, and welcome back from your empanadas. If any of you still have empanadas, I congratulate you. There was fierce competition for those empanadas towards the end there. So I'm going to shift our focus a little bit. For most of the day, we've been talking about the non-military and domestic applications of drones, a.k.a. unmanned aerial vehicles, a.k.a. remotely piloted aircraft, a.k.a. whatever you want to call them. I'm going to keep talking about them as drones, just because one word is always better than three. We've been talking about the domestic and non-military applications. I'm going to shift a little bit here and talk about the issue that has been in the news much more, which is U.S. drone strikes overseas, particularly in the context of drone strikes in places such as Pakistan, Yemen, Somalia, and maybe we don't know a few other places as well, perhaps Somalia, perhaps the Philippines, et cetera. So let me start by just very briefly trying to recapitulate what is and isn't different about drones, because I think this is one of those situations, and we've already heard a lot about this, where it's really hard to disentangle what is an issue of a technology and what is an issue of a policy that may be enabled and facilitated by the technology, but is not the same thing. So first, let me just talk about some of the reasons that people get upset about drones that I think are red herrings, are not the right reasons to be upset, or they're reasons to be upset, but not about drones as such, and then talk a little bit about what I think we should be quite concerned about. And as I suggested, it has much more to do with the policies that are enabled by these technologies rather than the technologies in and of themselves. So when we talk about drone strikes, what we talk about, we talk about civilian casualties. We often talk about the so-called... Anxiety is about the so-called sort of video game-type killing qualities that they seem to enable and worry about whether this leads to a sort of moral disconnect from killing. And we talk about the ethics of long-distance killing and tend to talk about this as if this is something very different from other things that have gone before. I'm going to suggest that those are mostly red herrings. Okay? Civilian casualties. Do drone strikes cause unintended civilian casualties? Yes, they do. Wars cause unintended civilian casualties. Airplanes flown by human pilots that drop bombs cause unintended civilian casualties. All operations forces' raids cause unintended civilian casualties. And it is absolutely reasonable for us to say, we think that the military strategy and tactics the United States is pursuing right now is causing far too many civilian deaths and far too much suffering. That's fine. And that's a discussion I think we should have, and I am inclined to agree with it. But I think we should distinguish that from the issue of drones as such because if anything, as a weapons delivery technology, drones are probably somewhat better than the alternatives at being able to tell the difference between an intended and an unintended target. Now that doesn't mean our targeting is only as good as our intelligence, right? If we have crummy intelligence that says, oh, those people over there are militants, terrorists, what have you. If our intelligence is wrong, then it's not that we get the unintended target. We get our intended target. We just were misinformed and we got the wrong people, period. But that's also not an issue of the technology, the drone technology, the weapons delivery technology. That's an issue of intelligence. If we're targeting the wrong people because it's just stupid, they are militants, they are terrorists, but it's just self-destructive, not in our national interest to be attempting to kill every last low-level militant we can possibly find. That's also a different issue. That's an issue of U.S. policy and strategy and tactics, not an issue of the technology as such. I'm also not super inclined to give a lot of credence to the anxiety that drones are bad because they enable long-distance killing. The history of military technology is a history of the evolution of weapons that are designed to do exactly that, from the spear rather than the sword to the crossbow to artillery to machine guns. And this, in that sense, I don't think it's qualitatively different, nor does it create qualitatively different moral and ethical concerns. A pilot flying at 30,000 feet is pretty long-distance. It's pretty video game-like if that is what we think is the concern. Whereas, if anything, there is some evidence that the people at the other end of the technology, it is actually more up-close and personal, precisely because the nature of the technology enables drone pilots from a distance to see human faces in a way that the pilot of a manned airplane cannot see and to see them over an extended period of time and then, poof, they're gone and then go back and supervise your kid's soccer game or coach or whatever that's supervised. They don't supervise soccer, do you? I'm conflating different terminologies here. Coach, coach, thank you. So there's actually a lot of evidence that there are pretty high rates of, for instance, post-traumatic stress disorder amongst drone pilots for exactly that reason that it may be killing at a distance but it feels up-close and personal in a particularly jarring way. So those, I think, are red herrings. Those are, I think, areas in which I don't think drones as a weapons delivery technology presents a new issue. But here's what they do do, okay? They reduce the perceived costs of using lethal force, particularly across borders outside of traditional battlefields, so-called hot battlefields. Not as much as people think a nation with sophisticated air defenses is more than a match for current U.S. drone technologies but certainly in either ungoverned spaces or nations with weak air defenses or consenting states. They enable the sense that we can use force across borders at no risk to us, no risk of death to American personnel. Cheap, lower cost economically, drones are just cheaper than their counterparts, at least at this moment. It depends a little bit how you calculate, but they're certainly perceived as cheaper. As we develop more sophisticated drones, they may become less cheap compared to their manned analogs. And finally, precisely because they enable those doing the targeting to do a better job of ensuring that they don't hit the people they don't want to hit, they create the illusion that they're actually lower cost in terms of civilian casualties than other alternatives. You know, that the likely unintended deaths if you use other means of killing people from a special operations raid to manned aircraft are a lot higher. And these things combine, I think, to make policy makers think, well, heck, you know, if there's a bad guy who we would like to get rid of in a foreign country and we can do it in a way that risks no American lives, we can do it in a way that we believe minimizes the risk of unintended civilian casualties and other alternative means. And we can do it just for fewer dollars, why not? And so I do think it reduces that threshold for the decision to use force in foreign countries in a way that just makes it a little bit more tempting. And we've seen that. I think this is a classic mission creep situation that we began when we had fewer drones available. We were using them in much more limited circumstances to go after a much smaller number of much higher level targets, and what we've seen in the last few years, in particular under President Obama, has been a kind of a spread both to more and more places geographically outside of hot battlefields and to an expanding universe of targets who are further and further away from any notion of terrorist mastermind and increasingly further and further away even from any meaningful link to al-Qaeda or to 9-11 or to any kind of imminent threat to the United States directly. Take al-Shabaab and Somalia, not a particularly likable group, but also not a group that had anything much to do with 9-11, as far as I know, and not a group that I think that anyone thinks has any remotely imminent interest or ability to attack the United States as such, that their ambitions are primarily local. But we've got this neat technology that makes it relatively easy to go after them, so why not? It enables that kind of mission spread, mission creep. So here's what I think we should be worried about, right? So I said that I think in some ways the issue of civilian casualties, long-distance killing, or a bit of red herrings, not because they're not important, but because they're not unique to this technology. They're part of broader issues of strategy or the decision to use force in the first place. But if those are red herrings, what should we care about? And here I think we should care about two things, and they're overlapping. They're interconnected. I'm going to sort of arbitrarily distinguish them into two categories, but they're really obviously connected to each other. And one of those is we should have a set of strategic concerns, and the other is a bunch of concerns about the rule of law. So here's the strategic concern. The strategic concern is, as we use these strikes more and more, you know, I don't like, I never thought I would be favorably quoting Secretary Donald Rumsfeld, but he famously asked during the Iraq War, how do we know if we are creating new terrorists faster than we can kill them? And I think that's an obvious question to ask about the expanding use of U.S. drone strikes outside of hot battlefields. Even if we are right about every single target, even if our intelligence is good, they're all bad guys. You know, even bad guys have children, families, friends, networks, people who are going to be left grieving, people who are going to be left angry. So there's just a question of, does this actually make sense if our goal is to reduce the long-term threat of terrorist attack against the United States? Does this actually make any sense? Because we do know there's ample evidence that these are extremely unpopular, they are perceived as causing many, many civilian casualties, that they are frightening if you think that death can rain down on you from the sky at any moment. It's not a lot of consolation to know that the U.S. is trying really hard to get the right people. You know, that it can cause a lot of resentment and anger against the United States. So that's sort of the strategic question. Does this actually make any sense as part of a counter terrorism strategy? Here's the rule of law question. And this I think is the deepest and most troubling piece of this. When drones are used in traditional battlefields, they're just another weapon. You know, and they're subject to the same rules. You know, we've had law governing means and methods of warfare for centuries now in one way or another. But when they're used off of hot battlefields, I think that their use fundamentally challenges our most core rule of law ideas. Right? Okay, so what's the rule of law? Well, we read the Declaration of Independence, right? At its core this is an idea about the importance of finding institutions and rules to reign in the arbitrary exercise of state power and to prevent the abuse of power. To ensure predictability and stability. To make sure that individuals know that their lives, their liberty, their property will not be taken away from them arbitrarily and abusively. So here's why we've got a problem right now. And I think it's a problem that goes well beyond. It's not a problem about drones. It's a problem about the nature of modern warfare and how we define modern warfare. So in ordinary life you go outside, you walk out of this building, you see a guy on the street, and you take your iPhone out of your bag and you hit him on the head with it and you kill him. And what happens to you? The police come along and you're arrested and you're probably charged with criminal homicide. And if you say, but he was my enemy, it's not going to do you a lot of good, right? It doesn't matter. And in fact this applies to state authorities as well. If the police go and kill somebody and say, well he was an enemy of the state still against the law, no question about it. In ordinary circumstances we know that. We know what is against the law and what is not. But obviously sometimes the ordinary legal rules do not apply. When we're in a war, when the law of war is the body of law that applies, combatants in a war are not only permitted to kill enemy combatants under certain circumstances, they're more or less required to do so. At risk of being punished themselves. We have a different set of rules relating to the willful killing of human beings and the degree if any of due process that goes along with that. That's not in and of itself a problem, right? To have one body of rules for one set of circumstances, another body of rules for another set of circumstances, one body of rules that says it's not okay to go out and kill somebody, another body that says actually here are the circumstances in which it is. That's not necessarily a rule of law problem. As long as we can tell the difference between when one set of rules applies and when the other set of rules applies, right? And in law professor terms this is the law of war is so-called lex specialis, the fancy Latin way of saying it's special law. It applies to special circumstances, those special circumstances being armed conflicts and the rest of the time we're under lex generalis, general law which says no you can't go out and kill people. The problem is that right now we do not know how to categorize threats posed by geographically disused non-state actors such as al-Qaeda and its fabled associates. We don't know if they're sort of like war in the sense that some of these organizations can possess the means of lethal force on a scale that we previously equated with state action. On the other hand they're sort of like crime. They occupy a little bit of an in-between. I think for a long time we've been kind of paralyzed since 9-11 in this very sterile debate between well is it just war or is this crime? Well if it doesn't look like crime therefore it must be war or it doesn't look like war therefore it must be crime. I think the fact is it's a little bit of both and yet we have legal frameworks that are all or nothing one or the other. The problem though is that if we have a law of armed conflict under the law of armed conflict when the U.S. drone strikes if we think that's the body of law that applies they're perfectly lawful. If the law of armed conflict applies then when the U.S. strikes a target in Yemen or in Pakistan you can kill an enemy combatant under the law of war while they're sleeping. You can cause collateral damage as long as it's proportionate and so forth that's okay. If the law of war doesn't apply then these are murders they're extrajudicial executions and they violate international human rights law and they probably violate the domestic law of that country they may violate the domestic laws of the United States. Trouble is right now we don't have any principled means of being able to say clearly which it is because we have a concept of armed conflict that stretches from World War II up to whatever is happening right now in Yemen and I would put it to you that if our notion of armed conflict is so capacious that World War II and what's happening now in Pakistan or Yemen can both be described under it it's not doing a lot of good for us anymore it's not a very useful construct so this is the long-term challenge the long-term challenge is not a challenge that has to do with drones the long-term challenge is a challenge that has to do with trying to think through do we need a different set of rules a different set of international norms governing the cross-border use of force threats that are war-like in some respects crime-like in other respects because right now we have a kind of a radical indeterminacy where two people can with a straight face tell you radically different stories about the same event with one person saying there's nothing new here at all this is just a routine use of force in the context of an armed conflict in which one state is targeting combatants of another state that they're in their enemies and what's the problem this you don't have judicial review you don't put judges on the battle feel that doesn't make any sense there's nothing new here and the other folks are saying that's not what we have here what we have here is simple murder we have here an abuse of power and a deep deep challenge to the rule of law and I don't think we have a principled means for being able to say that one person is wrong and the other is right that to me is the most scary thing of all we need to find a new vocabulary and a new framework for actually thinking about these problems so I am out of time and Adam is waving little stop signs at me so I will stop although there's much much more to say we're not doing questions Adam are we okay and no questions are permitted so just everything I said write it down now I I'd be happy to talk about it more because there is much much more to be said on this but but for now that will be that will have to be the end