State Department Legal Adviser Harold Koh's speech to the American Society of International Law has mostly been read as a justification of the administration's use of drone strikes against suspected al-Qaeda targets. With the news that the Obama administration has targeted American-born extremist cleric Anwar al-Awlaki for death, I went back to Koh's explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government's authority to kill al-Awlaki without due process.
On targeting "enemy leaders" for use of lethal force:
[S]ome have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.
On whether doing so would constitute an extrajudicial killing:
[A] state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. 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.
On whether doing so would violate the domestic ban on assassination:
[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”
The speech has been read as a defense of drone strikes, but note Koh's own language in describing his argument:
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.
Now when he refers to "U.S. operations," Koh could be simply referring to drone strikes in the context of other counterterrorism actions such as the war in Afghanistan or the FBI arresting terrorists -- but he could also just as easily be referring to the Joint Special Operations Command operating in Yemen. Since the speech acknowledges no limits on what can be considered the "battlefield" in the war on terror, what it amounts to is a defense of the executive branch's authority to kill anyone suspected of being a terrorist regardless of citizenship as long as it thinks real hard about it first, by means "including" but not necessarily limited to the use of drones.
I'm sympathetic to the idea that the drone strikes are legal in Pakistan, if only because the U.S. presumably has the tacit permission of the Pakistani government and the forces with whom the U.S. is engaged in an international armed conflict in Afghanistan are in fact based on the other side of the border in Pakistan. But again, Koh doesn't acknowledge any geographical limits (in terms of proximity to a specified combat zone) on the authority of the U.S. in "targeting a particular leader of an enemy force," so there's no reason to think that the government believes its authority is so limited.
-- A. Serwer