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.
As for the second principle, proportionality, it requires that attacks must be judged in light of the civilian deaths they may cause, as well the damage expected to civilian property and objects. This potential loss must be weighed against the military advantage that would come from carrying out the strike. Many of the drone program's critics have pointed out these calculations are made in secret, likely by officials from the CIA and the National Security Council, who draw up the lists of drone targets. Therefore, it's difficult to know whether proportionality is taken into consideration, and how that happens. Even some U.S. military commanders have ridiculed the drone strikes for doing more harm than good because they kill many civilians and engender tremendous animosity in countries where American forces are trying to forge alliance with local citizens.
If the drone program didn't adhere to the principles of distinction and proportionality, it could be devastating to the Obama administration's counterterrorism operations. If officials can't legally kill al Qaeda and Taliban figures in places like Pakistan, even when they're using that country as a home base to plan lethal strikes against U.S. forces in Afghanistan, as well as targets in the United States, then there are few good options left for fighting them.
Koh responded to these issues last night, which is something that no official had yet done:
In U.S. operations against al Qaeda and its associated forces--including lethal operations conducted with the use of unmanned aerial vehicles--great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.
Essentially, Koh's saying there is a process, it's legitimate, and it's closely followed for every drone attack.
This isn't likely to silence groups such as the American Civil Liberties Union, which recently filed a lawsuit demanding the government turn over documentation about this very process. But coming from Harold Koh, this statement carries considerable weight in human rights and international law circles. Koh is a prolific writer and authority on human rights, civil liberties, and the application of international law. And in his former position as the dean of Yale Law School, he was a vocal critic of Bush's counterterrorism policies.
Koh wasn't offering an across-the-board endorsement of drone killings in all cases, and no one I know expected him to. But what he did say puts the administration's drone program on a more solid legal foundation than it has ever been.