Shane Harris has some of the text of State Department Legal Adviser Harold Koh's speech to the American Society of International Law last night defending the Obama administration's use of drone attacks as legal. Philip Alston, the U.N. Special Rapporteur on Extrajudicial Executions, has suggested in the past that the attacks might not be.
Koh argued that the U.S.' use of drones takes into account principles of "distinction" -- namely that the attacks are aimed at lawful enemy targets and not civilians -- and "proportionality," which "prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated."
Koh said that "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" and added that the "procedures and practices for identifying lawful targets are extremely robust."
As for the question of whether or not the drone attacks constitute unlawful extrajudicial executions, Koh said this:
A state that is engaged in armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force. ... 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.
As to whether the strikes violate domestic laws against assassination:
Under domestic law, the use of lawful weapons systems -- consistent with the applicable laws of wear -- 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.”
There can be a case made that the second principle Koh cites, "proportionality," might be violated by the drone attacks. A study by Peter Bergen and Katherine Tiedemann of the New America Foundation found that one-third of those killed by drones were civilians. As this map shows, the drone strikes often take place in Pakistan, which is technically outside the Afghan theater of war. The other question is whether or not the strikes themselves are counterproductive from a strategic standpoint, which some counterinsurgency types have argued.
At any rate, the ACLU wants a closer look at the legal process by which targets are determined and proportionality is assessed, and they've filed a FOIA lawsuit to that effect.
Brief flashback: Remember when the right was accusing Koh of believing Sharia law could apply in U.S. courts? Now he's providing the administration's legal justification for the killing of high level al-Qaeda targets. It's almost as if the accusations against him were baseless partisan smears from the same kind of people who are now attacking attorneys who defended detainees at Guantanamo Bay.
-- A. Serwer
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