The Obama administration has for the first time laid out its legal rationale for drone strikes: The State Department's legal adviser described the reasoning in a major speech to a conference of international lawyers.
Drone attacks have increased dramatically under President Obama, killing suspected terrorists in Afghanistan, Pakistan, Yemen and Somalia. But the operations are shrouded in secrecy, and some international law experts consider them to be illegal assassinations. Until now, the administration has resisted pressure to describe the legal rationale behind the attacks.
Harold Koh outlined the administration's thinking in a keynote speech at the American Society of International Law annual conference in Washington, D.C.
Past Criticism Of Bush Policy
Koh, who was dean of Yale Law School during the Bush administration, was a frequent critic of U.S. counterterrorism policies. In 2004, he told NPR, "The extent to which this administration has let the Geneva Conventions be flouted, has let the Torture Convention be undermined, and then hasn't really gotten to the heart of why that happened, I think will be the epitaph for this administration's human rights policy in the years ahead."
Now, as the State Department's legal adviser, he is responsible for dismantling, changing or overseeing many of the legal policies he observed from the outside over the past eight years.
As recently as last week at an American Bar Association breakfast, Koh resisted pressure to publicly describe the Obama administration's legal reasoning for targeted drone killings.
"There are some questions I don't answer with one cup of coffee," he said to laughter.
"Put it this way: You can expect a more detailed discussion of this to come," he added.
The detailed discussion came Thursday evening, in a packed ballroom of the Ritz-Carlton hotel in Washington.
"The U.S. is in armed conflict with al-Qaida as well as the Taliban and associated forces in response to the horrific acts of 9/11," he told the crowd of lawyers, "and may use force consistent with its right to self-defense under international law."
Koh explained that Congress made the conflict official when it passed a law known as the Authorization for the Use of Military Force shortly after the attacks of Sept. 11, 2001.
He said the government uses advanced technologies to ensure "that civilian casualties are minimized in carrying out such operations." And he said whether a given person becomes a target depends on various considerations, "including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses."
Koh argued that a state engaged in armed conflict or legitimate self defense (such as the U.S., according to Obama administration reasoning) is not required to provide targets with legal process before using lethal force.
'A Global War On Terror By Any Other Name'
Some conference attendees were not convinced.
Weeks before the event, Notre Dame law professor Mary Ellen O'Connell said she was eager to hear Koh make his case.
"It really is stretching beyond what the law permits for this very extreme action, killing another person without warning, without a basis of near necessity, simply because of their status" as a member of al-Qaida or a related terrorist group, O'Connell said at the time.
After the talk Thursday, O'Connell thanked Koh and said she is still not convinced.
"What I'm hearing you say is that the Obama administration continues to see that there is such a conception as a global war on terror," O'Connell said.
Koh interjected, "I said a lot of things in my remarks — that's not one of the things I said."
Later O'Connell muttered, "A global war on terror by any other name would smell as bad."
Like O'Connell, American University law professor Ken Anderson has studied drone attacks, and he was eager to hear the administration's legal rationale. Unlike O'Connell, Anderson believes the strikes are legitimate and necessary.
He argues that the alternative to drone strikes is not to abandon violence and force.
"The alternatives are whether you're going to drop larger-sized bombs on whole villages or instead invite the Pakistani army to do a rolling artillery barrage that will simply destroy the entire place," he said.
There are still many unanswered questions about these attacks and the legal reasoning behind them, and the administration's decision to show a bit of leg last night might increase the pressure to reveal more.
After the speech, ACLU attorney Jameel Jaffer told NPR he'll file a lawsuit to get the Justice Department document laying out the full legal rationale for these strikes.