Walking down a hallway of the Hart Senate Office Building on Tuesday, Georgetown University law professor Rosa Brooks was reminded that President Barack Obama has seemed uneasy about the administration’s highly secret U.S. drone program which targets and kills terror suspects overseas.
“He should be bothered by it,” Brooks remarked.
“I believe the people engaged in this process — many of whom I know — are extremely serious-minded, thoughtful people who care deeply about the set of rule of law issues. But they’re saying, ‘Just trust us on this.’ And that’s not good enough,” she told the NewsHour.
Moments earlier, Brooks was a panelist in a two-hour Senate Judiciary hearing — the first major Congressional session on the controversial drone program.
It was well-attended except for any witness from the Obama administration, a fact lamented by committee chair Dick Durbin — the Senate’s second-highest ranking Democrat, a close ally of Mr. Obama’s and one of a growing number of members of Congress and the public calling on the president to rein in and reform the drone program.
“Right now we have the executive branch making a claim that it has the right to kill anyone anywhere on Earth at any time for secret reasons based on secret evidence in a secret process undertaken by unidentified officials,” Brooks told the judiciary panel.
Begun under the George W. Bush administration but continued and accelerated by Mr. Obama, the program uses armed drones away from the Afghanistan battlefield — largely in Pakistan and Yemen — to kill suspected terrorists determined to pose a threat to the United States.
The strikes have generated strong anti-American sentiment in both those countries and garner dwindling public support in the United States.
The New America Foundation recently estimated more than 420 targeted strikes in the last eight years have killed between 2,426 and 3,969 people — overwhelmingly militants but including up to 368 civilians.
A foundation representative at Tuesday’s hearing noted the number of reported drone strikes has fallen sharply recently — a fact the representative tied to reports of more personal involvement in administration of the program by Mr. Obama.
In an October 2012 interview, Mr. Obama said of the drone program, “we’ve got to … put a legal architecture in place, and we need Congressional help in order to do that, to make sure that not only am I reined in but any president’s reined in, in terms of some of the decisions that we’re making.”
The president has not taken up the drone issue in public again but White House press secretary Jay Carney, asked Wednesday about the drone hearing, said, “We have been in regular contact with the committee. We will continue to engage Congress…to ensure our counterterrorism efforts are not only consistent with our laws and system of checks and balances, but even more transparent to the American people and the world.”
And after the hearing, Brooks, too, sounded optimistic.
“My own sense is that the executive branch is open to discussion of some kind of judicial process,” she said.
While some experts have argued for court oversight of drone strikes before they’re carried out, Brooks sides with those who say that would be unwieldy and unworkable.
Brooks says however an administration that knows its strikes could face court review after the fact — with possible damages assessed — would be more responsible and careful about who it strikes and why.
“If Congress were to create a statutory cause of action for damages for those who had been killed in abusive or mistaken drone strikes, you would have a court that would review such strikes after the fact. [That would] create a pretty good mechanism that would frankly keep the executive branch as honest as we hope it is already and as we hope it will continue to be into administrations to come,” Brooks said.
“It would be one of the approaches that would go a very long way toward reassuring both U.S. citizens and the world more generally that our policies are in compliance with rule of law norms.”
Brooks says the Obama administration also should release all its legal opinions undergirding the drone program and limit strikes to those who pose the most immediate threat.
“I have a list,” she says, “some which require the executive branch, some which Congress can do on its own.”
But for now, she says, “I think Congress should do exactly what it is starting to do — convene hearings.”