Top State Dept Lawyer Defends Legality of Drone Strikes

By Matt Loffman

Mar 29, 2010 5:00pm

ABC News' Kirit Radia reports: In a little noticed speech last week, State Dept. Legal Advisor Harold Koh for the first time outlined, and ardently defended, the legal basis for the use of lethal drone attacks against terror targets. In a keynote address to the American Society of International Law on March 25, Koh says “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.” Koh, a former human rights lawyer and dean of Yale Law, argues that drone attacks are justified in the interest of national self-defense against terror targets. “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 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,” he said. This defense comes as the ACLU has filed suit against the Departments of Defense, State, and Justice asking for details on the legal basis for the use of such strikes, including who authorizes them, and how targets are chosen. Koh doesn’t go into how drone targets are selected, but he appears to address the ACLU’s complaints in part of his remarks, in which he said: “Some have suggested that the very act 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 belligerents 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 used, 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 an 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.”

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