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Lawfare Podcast Episode #31: Special Edition: Ben Emmerson Discusses His Investigation

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Tuesday, May 14, 2013 at 3:37 PM

UN Special Rapporteur on Human Rights and Counterterrorism, Ben Emmerson, came by the Brookings Institution this morning for a wide-ranging discussion on his investigation of drone strikes. We had planned the interview as a video, but Emmerson’s remarks broke enough new ground that we thought we should release the audio right away. The video will follow in due course. Hence today’s special edition of the Lawfare Podcast.

Emmerson is very impressive, and this interview might give grounds for second thoughts to those inclined to dismiss him as just another special rapporteur investigating U.S. activities on behalf of the United Nation’s Human Rights Council. He seemed surprisingly open to the possibility that, as the United States argues, the U.S. may be in a non-international armed conflict with a non-state actor, and said early in our conversation:

There is a really wide spectrum of informed, intelligent and reasonable opinion on what the basic framework issues are. And I’ve taken part now in too many high-level seminars with people who are all genuine experts in their fields addressing a problem which has multi dimensions and within each dimension multiple facets, in which it is it almost impossible to find a common agreement on the core principles. . . . There are fundamental differences on first principles, but there are also fundamental differences on all of the refinements within those principles. I am unable amongst informed opinion at present to discern a critical mass of concurrent opinion, which to me in itself is a conclusion—and is also a conclusion which points towards the need for some fairly urgent discussions in the face of a technology that is technology that is proliferating . . . at a remarkable speed.

He candidly said that he had started the investigation with certain preconceived notions about the legal paradigm that governs the American conflict with Al Qaeda and its affiliates, but says he has had those preconceptions challenged by his conversations:

I think it’s absolutely fair for me to acknowledge that . . . I did start from a position in common with other international lawyers from my side of the world, which found the new paradigm [the U.S. view] difficult to accept and follow. But I have to say that like all good conversations, the moment one begins to talk to others and see things from a different point of view, what has become clearer and clearer to me is that we get nowhere by the continuance and maintenance of entrenched positions and that, crucially, we need to listen to one another’s point of view and see what is the way forward.

Moreover, while Emmerson’s public statement on the Pakistani government’s consent to drone strikes seemed to downplay—even ignore—the possibility of private consent by the military, in this conversation, he directly acknowledged the likelihood of secret deals and permissions. It’s been a “known open secret” for some time, he said, that

there has been the provision of quite high levels of cooperation between the ISI and the Agency and indeed that members of the Pakistani military may well have provided levels of cooperation. And I don’t rule out by any means—indeed I am far from ruling out—the proposition that that cooperation on a military and intelligence level continues.

The discussion also covered Emmerson’s plans for the rest of his investigation, why Pakistan doesn’t shoot down U.S. drones, and Emmerson’s view of John Brennan’s ascension to CIA director.

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