Last night, the State Department's legal adviser, Harold Koh, delivered a keynote address to the American Society of International Law's annual meeting in Washington. He spoke in part about the administration's use of lethal force against terrorists, specifically drone attacks, and whether this was legal under international law and the laws of armed conflict. Koh's remarks were the most consequential on this subject to date, and the ripple effects will be felt throughout the Obama administration's foreign policy for months and possibly years to come.
The bottom line was this: Lethal strikes against terrorists, including those involving unmanned drone aircraft, "comply with all applicable law, including the laws of war," Koh said. If you'd missed the roiling controversy over this question that's been playing out in recent months, know that this question is one that many experts had been waiting for Koh to address, and that it goes to the very heart of the Obama administration's war on terrorists.
...[I]t is the considered view of this administration...that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles (UAVs), comply with all applicable law, including the laws of war....As recent events have shown, al Qaeda has not abandoned its intent to attack the United States, and indeed continues to attack us. Thus, in this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al Qaeda leaders who are planning attacks....[T]his administration has carefully reviewed the rules governing targeting operations to ensure that these operations are conducted consistently with law of war principles...
Koh had said recently that the administration had formed a legal basis for the controversial drone program, and that soon it would be revealed. His speech last night certainly leaves a number of questions unanswered, but this is basically the unveiling of the legal policy.
Here's one very significant portion of his remarks, which make clear that Koh has reviewed the program and its attendant, all-important targeting procedures:
Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law...
Those two principles, distinction and proportionality, have been the main points of contention in the drone program. The first, distinction, requires that any attack in an armed conflict be limited to military objectives, and that civilians can't be targets. In counterterrorism operations, this can be a hard principle to follow if a stateless attacker tries to blend back into the civilian population. Is he a combatant? Is he a protected civilian? Lawyers have to make that call in the heat of battle.