Setting the Record Straight on Rosa Brooks

[ Laura Dickinson is Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]

It seems that in some quarters, support for international law (combined with a little bit of humor) is enough to get one labeled “so out there” to be unqualified for government service. A few commentators on the right have recently decided to attack international law scholar and former L.A. Times columnist Rosa Brooks, who just accepted a position as an adviser to Undersecretary of Defense Michele Flournoy. For example, Bill O’Reilly recently called Brooks a “radical leftist” whose appointment was “madness.”

These kinds of assertions are so unjustified that I thought it was important to set the record straight. Brooks, with whom I worked at the State Department in 1999 and 2000, has routinely adopted moderate positions that are well within the mainstream of our political culture. To take one example, in a column from February, 2009, Brooks advocated for a long-term U.S. presence in Afghanistan. In a 2004 article published in the University of Pennsylvania Law Review, Brooks contended that in the face of challenges posed by terrorism, we ought to consider scrapping many elements of the law of war framework embedded in the Geneva Conventions. Indeed, as to this point, some commentators have criticized Brooks’ position for potentially opening the door to watered down protections of individual rights.

The claims of O’Reilly and others are based on quotations taken completely out of context and ignore both the underlying arguments that Brooks has made, as well as her (quite vigorous) sense of humor. One comment that drew O’Reilly’s ire, for example, was her statement in a December, 2008 column that the man who threw the shoes at President Bush “reminded the powerful and powerless alike that a single symbolic gesture can be more effective than a thousand grenades.” O’Reilly chastised Brooks because in his view she “supported” the shoe-thrower. Yet he neglected to mention that Brooks actually opened the column with the assertion that she was not supporting him: “I’m not defending Muntather Zaidi, the Iraqi journalist who flung both his shoes at President George W. Bush during a Baghdad news conference.” The column, taken as a whole, is actually a strong condemnation of terrorist violence. Another Brooks statement that O’Reilly picks on was her claim in an October 2007 column that “George W. Bush and Dick Cheney shouldn’t be treated like criminals who deserve punishment. They should be treated like psychotics who need treatment.” Here O’Reilly fails to note that Brooks is making a joke. In fact, the overall point of the column is to argue against those calling for the impeachment of then President Bush and Vice President Cheney.

And with respect to another comment by Brooks, it is just hard to fathom how O’Reilly could view it as extremist. In a March 2009 column, Brooks asserted that, “The Bush administration’s big legal lies paved the way for some of the most shameful episodes in our history, including the official authorization of torture.” Last night, President Obama noted that waterboarding, an interrogation technique authorized by Bush administration lawyers, was torture. Indeed, the United States prosecuted Japanese war criminals for the practice after World War II. The legal memos that authorized this practice neglected to cite important precedents and stretched the law beyond recognition. Under these circumstances, it is hardly radical to call the acts of torture that these memos authorized “shameful.” Indeed, one might argue that the true radicals are those who fail to acknowledge the shamefulness of these incidents.