I have been concerned for some time about the legal rationale for targeted killings by drones, and it was a topic for a Warrior Legacy Institute paper that Brad Patty and I co-authored. Kenneth Anderson has written extensively on the need for our government to assert this to get ahead of the trans-national organizations and some countries who assert jurisdiction over the entire planet. The International Criminal Court (which we are not a part of) has stated that it is investigating potential war crimes in Afghanistan by US forces. The Authorization to Use Military Force (AUMF) passed just after 9/11 gives the President the right to target and kill al Qaeda and it's enablers wherever he finds them. But Anderson has been calling for a broader assertion of our right as a sovereign nation to kill terrorists via any method we find suitable based on self defense. This argument has been lacking and if made puts us in a much stronger position to hunt down terrorists, pirates and other malfeasants.
When President Obama appointed Harold Koh and Legal Adviser to the Department of State, it seemed unlikely that he would be an advocate of such an argument. He is a self-proclaimed trans-nationalist and has made numerous public statements that would subjugate US sovereignty to any number of world organs. Well I am happy to be surprised as it seems he has made a powerful defense of US sovereignty and targeted killings using drones or any other means. Prof. Anderson explains:
Second, on the substance. On first read, I think this is a great statement. It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces. But it also asserts self-defense several times as an alternative. I had been greatly concerned that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view — that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.
That is an important step toward giving us a solid basis for taking the fight to our enemies and bringing justice to them. I always hated how W would say "bring them to justice". We have too many holes in our game here at home, so better to whack them and be sure they are out of the game. Here is some of Mr. Koh's remarks:
[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.....
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. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise.
There he makes the distinction that matters when he says "engaged in armed conflict or in legitimate self-defense". That is the key as we determine our self defense and if we have a rational belief that action is necessary, this says that we assert our right to do so. Bravo sir. This is an unexpected windfall from this administration and makes us demonstrably safer, now and in the future. I won't go as far as my buddy Spencer Ackerman in claiming this vindicates Koh from charges he is a trans-nationalist, he is one. But I will say it gives me reason to believe that he can put aside his own beliefs and advocate for the security and sovereignty of the US, and happily that seems to be the position of the Obama administration. Again, nicely struck.