A noted human-rights expert who is serving as the State Department's top lawyer issued an unusually full-throated public defense of drone missile attacks on terrorists.
Harold Koh left his position as dean of Yale Law School to become State Department legal adviser when Barack Obama took office. As an academic, he had harshly criticized Bush administration policies on intelligence issues.
But in a speech Thursday to the American Society of International Law, Koh vigorously defended the legality of CIA drone missile strikes against targets in Pakistan, which were begun under President Bush and have now become a prominent part of the Obama administration's antiterror efforts.
In his speech, Koh didn't talk about any specific operations. But he defended the government's use of drones to kill alleged terrorists. It was, he said, the "considered view of this administration ... that targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."
He continued: "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."
Koh went on to outline the rules by which targets for drone operations are chosen. He said two important "principles" guide administration officials: "distinction" and "proportionality."
"Distinction," he said, means a strike must be limited to military targets; civilians or their property "shall not be the object" of any attack. "Proportionality," he said, means that no attack should be launched that is expected to cause "excessive" damage or loss of live to civilians or their property, in comparison to the "direct military advantage anticipated."
Koh also responded to critics who have questioned the legality of such attacks under international law. "[S]ome have suggested that the very use 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 belligerent and, therefore, lawful targets under international law ... [S]ome have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system involved, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict—such as pilotless aircraft or so-called smart bombs—so long as they are employed in conformity with applicable laws of war."
Koh continued: "[S]ome have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But 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."
He also addressed the issue of whether the drone attacks violate U.S. laws banning assassinations, asserting flatly that "under 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.'"
Obama administration officials had been hinting for some time that a public defense of the drone strikes—which by most accounts have increased in intensity since Barack Obama became president—would be forthcoming. (Koh himself softened the ground for his speech in an interview with National Journal last week.) National security officials say that Obama has been supportive of the drone-attack program since he received his first secret briefings about it after winning the Democratic presidential nomination.