Koh & Drones

Harold Koh on Drones

On March 25, 2010, Harold Koh, then legal adviser of the U.S. Department of State, stated the following during a talk for the Annual Meeting of the American Society of International Law:

In the same way, in all of our operations involving the use of force, including those in the armed conflict with al-Qaeda, the Taliban and associated forces, the Obama Administration is committed by word and deed to conducting ourselves in accordance with all applicable law. With respect to the subject of targeting, which has been much commented upon in the media and international legal circles, there are obviously limits to what I can say publicly. What I can say is that it is the considered view of this Administration–and it has certainly been my experience during my time as Legal Adviser that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.

The United States agrees that it must conform its actions to all applicable law. As I have explained, as a matter of international law, the United States is in an armed conflict with al-Qaeda, as well as the Taliban and associated forces, in response to the horrific 9/11 attacks, and may use force consistent with its inherent right to self-defense under international law. As a matter of domestic law, Congress authorized the use of all necessary and appropriate force through the 2001 Authorization for Use of Military Force (AUMF). These domestic and international legal authorities continue to this day.

Source: Lawfare, “The Obama Administration and International Law,” Speech by Harold Hongju Koh, Legal Adviser, U.S. Department of State,” Mar. 25, 2010.

One day after Koh’s speech at American Society of International Law, Mark Hosenball published an essay for Newsweek narrating Koh’s “full-throated public defense of drone missile attacks”:

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.

According to Hosenball, Koh unveiled the two principles guiding drone operations: “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.”

Hosenball also reported on Koh’s response to those who argue that targets of drone attacks have the right to a legal process under international law as well as U.S. domestic law:

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.'”

In November of 2010, meanwhile, Koh was one of the 30 officials representing the United States during a meeting of the UN Human Rights Council in Geneva. As journalist Mark Tran from The Guardian reports, the US delegation “was forced to listen to repeated calls for the US to put an end to the death penalty.” Koh then defended the U.S. by claiming that “capital punishment was a subject of vigorous debate and litigation in the US and was applied for in only the most serious crimes.” He resumed his statement on the death penalty by reiterating its legality. In his own words, “International human rights law does not bar it per se.”

When debating drones, Koh “defended the use of unmanned drone aircraft to kill ‘high value targets’ on the Afghanistan-Pakistan border and in Yemen.” And again, he claimed that:

“Our targeting practice complies with all human rights law,” he said. “Operations are conducted in conformity with rule of law principles. It has been long legitimate to target enemy leaders and force is directed only at lawful targets.”

Source: Mark Tran, “UN Human Rights Council Urges US to End Death Penalty,” The Guardian, Nov. 5, 2010. 

In 2011, Koh offered a speech to the European University Institute’s Global Governance Programme in which he again offered a “robust defense” of targeted killings. According to Cian Murphy, a journalist for The Guardian:

“[T]here are those who see targeted killing as part of a constitutional response to terrorism. Harold Koh, a former Dean of Yale Law School and strong critic of the Bush administration, now serves as legal adviser to the State Department. He supports the use of targeted killing and in a March 2011 speech to the European University Institute’s Global Governance Programme offered a robust defence of the tactic.”

Source: Cian Murphy, Chomsky takes Obama to task, The Guardian, Oct. 13, 2011.

The Daily Beast reporter, Tara McKelvey, reported in an April 2012 article entitled, “Interview with Harold Koh, Obama’s Defender of Drone Strikes”:

In March 2010, one year after Koh became legal adviser, he gave a speech at an American Society of International Law (ASIL) conference in Washington, defending the official process of placing people on a death list and explaining that the procedures are “extremely robust.” For nearly two years, Koh was the only administration official who spoke on the record—in public forums—about the legal basis for the program.

Earlier this year, Jeh Johnson, the Pentagon’s general counsel, and Attorney General Eric Holder Jr. both spoke about the strikes, with Holder saying Americans had the right to target someone who posed “an imminent threat of violent attack.” Overall, however, Koh remains the only official to speak consistently about the targeted-warfare program; he blogged about the killing of Osama bin Laden, for example, and at the Holocaust Memorial Museum in Washington and other venues, he has defended the drone strikes, a startling turn of events for a man who had previously condemned these kinds of attacks and moreover seemed to embody the highest principles of international law.

“Why did he get involved? It’s quite inconsistent with his general work before. Koh’s claim to fame as a law professor has to do with the notion that the way international law and human rights become effective is through internalization in people like the legal adviser at the State Department,” says Bruce Ackerman, a Yale law professor. “To put it gently, targeted killings are not acceptable under international law.”

McKelvey reports that in response to the question, “How do we deliver justice to the enemy?” Koh stated:

“I think there are different ways. It can be delivered through trials. Drones also deliver.”

Source: McKelvey, “Interview with Harold Koh, Obama’s Defender of Drone Strikes”, The Daily Beast, Apr. 8, 2012.

In his 2013 book, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth, Matt Mazzetti writes that:

[I]n the decade since the September 11 attacks, legions of U.S. government lawyers had written detailed opinions about why the targeted-killing operations carried out by the CIA and Joint Special Operations Command far from declared war zones didn’t violate President Ford’s assassination ban. Just as lawyers for President Bush had redefined torture to permit extreme interrogations by the CIA and the military, so had lawyers for President Obama given America’s secret agencies latitude to carry out extensive killing operations.

One of them was Harold Koh, who had come to Washington from Yale Law School, where he had been the school’s dean. He had been a fierce critic from the left of the Bush administration’s war on terror and had decried the CIA’s interrogation methods–including waterboarding–as illegal torture. But when he joined the government as the State Department’s top lawyer, he found himself spending hours pouring over volumes of secret intelligence in order to pass judgment over whether men should live or die. In speeches, he offered a muscular defense of the Obama administration’s targeted killing operations, saying that in a time of war, the American government was under no obligation to give suspects normal due process rights before putting them on a kill list.

Still, in moments of public reflection, he spoke of the psychological burdens of spending so much time reading the biographies of the young men the United States was debating whether or not to kill. “As the dean of Yale Law School I spent many, many hours looking at the résumés of young twenty-year-olds, students in their twenties, trying to figure out which ones should be admitted,” he said during one speech. “I now spend a comparable amount of time studying the résumés of terrorists, the same age. Reading about how they were recruited. Their first mission. Their second mission. Often I know their background as intimately as I knew my students.”

Source: Mazzetti, The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth (2013).

In 2011, a U.S. drone strike targeted and killed U.S. citizen and Muslim cleric Anwar al-Aulaqi. U.S. citizen Samir Khan was also killed in the strike. In 2013, the leaked White Paper outlined the legal rationale for Mr. al-Aulaqi’s assassination. The White Paper cited Mr. Koh’s 2010 speech before the American Society of International Law in support of the legal arguments that it advanced.

Meanwhile, investigative reporter Jeremy Scahill documents Mr. Koh’s particular role in facilitating Mr. al-Aulaqi’s assassination in his 2013 book, Dirty Wars: The World is a Battlefield. In it, he reports that as Legal Adviser, “Harold Koh wanted to lay out the case publicly before Aulaqi was killed” in an effort to preempt critiques of the administration’s decision to target and kill a U.S. citizen in secret and without a trial. According to Mr. Scahill:

In advance of his public speech, the CIA and military gave Koh access to their intel on Aulaqi. Koh settled in for a long day of reading in the Secured Classified Intelligence Facility. According to [Daniel] Klaidman, whose book [Kill or Capture] was based almost entirely on leaks from administration officials, Koh ‘had set his own legal standard to justify the targeted killing of a US citizen: evil, with iron-clad intelligence to prove it.

Mr. Koh’s “stamp of approval” for Mr. al-Aulaqi’s killing was particularly useful to the Obama administration, Mr. Scahill reports, because his prior reputation as “a liberal, pro-human rights, pro-civil liberties lawyer” was “a strong preemptive strike against the critics.”

Source: Jeremy Scahill, Dirty Wars: The World is a Battlefield 371 (2013).

Daniel Klaidman further expounds upon Mr. Koh’s role in defending targeted killings in his book Kill or Capture: The War on Terror and the Soul of the Obama Presidency:

Koh began lobbying Secretary Clinton and the White House to let him make a speech in defense of targeted killing. …[T]he White House saw an upside in making him the unlikely public face of the CIA’s drone program. … The military and the CIA, too, loved the idea. They called the State Department lawyer ‘Killer Koh’ behind his back. Some of the operators even talked about printing up T-shirts that said: ‘Drones: If they’re good enough for Harold Koh, they’re good enough for me.’”

Source: Daniel Klaidman, Kill or Capture: The War on Terror and the Soul of the Obama Presidency (2012); see also, Philip Alston, Harold Koh and The Battle of the Dueling Petitions, Just Security, Apr. 20, 2015.

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