Drone Attacks Are Legit Self-Defense, Says State Dept. Lawyer

Wired.com

America’s undeclared drone war has been controversial, for any number of reasons: Pakistani politicians have cried foul over “counterproductive” strikes. Critics worry they may create more popular support for militants. And civil liberties groups have asked whether, in effect, it amounts to a program of targeted killing.

Now the State Department’s top legal adviser has offered a rationale for the ongoing campaign: Legitimate self-defense.

In a keynote address last night to the American Society of International Law, State Department legal adviser Harold Koh said it was “the considered view of this administration” that drone operations, including lethal attacks, “comply with all applicable law, including the laws of war.”

Al Qaeda and its allies, he continued, have not abandoned plans to attack the United States. “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,” he said.

It’s worth giving a closer look at the speech, excerpted here by ASIL. But this is not likely to appease critics of the drone war. Most recently, the American Civil Liberties Union filed a Freedom of Information Act lawsuit against the Defense Department, the State Department and the Justice Department, demanding that the government provide more details about the legal basis of the drone war, including details about who authorizes drone strikes, how the targets are cleared and the rate of civilian casualties.

Koh addressed several of the concerns raised by rights groups:

Some 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…. Some 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…. Some 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.

Obviously, this doesn’t end the controversy, but the administration has made it quite clear it sees no legal reason to scale back the escalating drone war.

Photo: U.S. Department of Defense

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