Shedding Light on the Legal Use of Drone Warfare

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Shedding Light on the Legal Use of Drone Warfare

Baroness Helena Kennedy and Professor Anne-Marie Slaughter lead the conversation for Third Annual Lloyd N. Cutler Lecture  SGS President, Stephen Salyer (far right) with Tom Mansbach, Baroness Kennedy, Justice Sandra Day O'Connor, Prof. Anne-Marie Slaughter

On November 12, 2012, an audience of over 120 gathered at the US Supreme Court to attend the 3rd Annual Lloyd N. Cutler Lecture on the Rule of Law.

Hosted by Justice Sandra Day O’Connor, guests enjoyed a stimulating conversation between Baroness Helena Kennedy, leading barrister and expert in human rights law, civil liberties, and constitutional issues, and a member of the House of Lords, and Professor Anne-Marie Slaughter, Bert G. Kerstetter ’66 University Professor of Politics and International Affairs at Princeton University, and former Director of Policy Planning at the US State Department and Dean of Princeton's Woodrow Wilson School of Public and International Affairs. The conversation was moderated by Adam Liptak, the Supreme Court correspondent for The New York Times.

The lecture was held as part of the work of the Lloyd N. Cutler Center for the Rule of Law founded in 2009 in memory of Lloyd Cutler, founder of the Washington law firm, Wilmer Cutler & Pickering, and White House Counsel to two US presidents. Cutler served for more than a decade as the Chairman of the Salzburg Global Seminar.

The main topic of discussion of the night was the use of drones as a means to national security. Speakers conversed over the legitimacy of drone strikes and the ethics  involved. This topic furthered the discussion of secrecy versus transparency, detention and torture, and the current state of human rights. In that context, Baroness Kennedy and Professor Slaughter also addressed the continuing existence of Guantanamo Bay.

"We are not following the rule of law with respect to drone warfare in the sense that ultimately there cannot be a system for an indefinite period targeting individuals all over the world, including quite possibly American citizens but even independently, that has no formal checks on it, other than what is essentially a system that says trust me," said Prof. Slaughter on the use of drone warfare.

"I do trust President Obama.  I do trust the lawyers that I know are very conscientiously applying their standards, but I haven't seen those standards.  I haven't had a chance to vet them.  I haven't had a chance to debate them and I don't at all, necessarily, trust all the people who could apply them.  So I actually think we are sowing a harvest we are going to be very unhappy to reap.  That this is a way of warfare that is going to continue for a very long time and  that doing it all within the executive branch is not going to be the rule of law as we will want to uphold it."

Baroness Kennedy referenced a current ongoing British case - Noor Khan versus the Secretary of State for the Foreign Office - which has led to questions over the use of civilans, in this case those working at the British intelligence agency, Government Communications Headquarters, in the gathering of intelligence used for drone strikes as they are non-combatants and thus not covered by international humanitarian law and potentially are at risk of being prosecuted in the domestic courts for being accessories to unlawful killing.

"What is being argued, though, which is important," said Kennedy, "is there was no attempt here to prosecute our intelligence officers.  What they are saying is we have to have light shone on this kind of conduct." 

The conversation, which also included questions from the audience, drew heavily on the two women's experience from both sides of the Atlantic on what both agreed would continue to be a contentious issue for many years to come.

 The night closed with a reception in the East and West Wings of the Court.