But a forthcoming study, led by Brian Glyn Williams, an associate professor at the University of Massachusetts, finds that the civilian death toll from the drones is lower than most media accounts present. “We came to the conclusion that the drones have a unique capability for targeting militants, as opposed to civilians,” Williams said in an interview.

Williams’ study, which he provided to The Washington Independent, has yet to be published. A writer for a blog affiliated with the International Herald Tribune, Farhat Taj, blogged some of the key details of his research today, but prematurely stated that the Combatting Terrorism Center at West Point will be publishing Williams’ work. Erich Marquardt, the editor of the center’s journal, said that he hasn’t even begun to review Williams’ submission yet.

Much like the New America Foundation study, Williams’ team relied on English-language media accounts of the drone strikes in Pakistan to compile a data base of how many civilians and militants were reported to be killed. He conceded from the start that such a reliance is a “serious limitation” of the study — news reports can, after all, be incorrect — but the tribal areas of Pakistan where the strikes occur are often off limits to Western researchers, and even their Pakistani counterparts. (Still, Williams plans on traveling to the tribal areas on June 10 to attempt a poll of local attitudes about the strikes.) His team took measures to mitigate that limitation: they only considered strikes that had been reported by multiple independent outlets and they erred on the side of treating the deaths of people in disputed militant status as either civilians or “unknown.”

Williams’ results, which he said have been peer-reviewed, are as follows:

According to our database, as of 1 April 2010, there have been a total of 127 confirmed CIA drone strikes in Pakistan, killing a total of 1,247 people. Of those killed only 44 (or 3.53%) could be confirmed as civilians, while 963 (or 77.23%) were reported to be “militants” or “suspected militants.”

That leaves just over 19 percent of reported deaths out of either category, as their status as civilians or combatants can’t be rigorously determined under Williams’ methodology. But he writes that “even if every single ‘unknown’ is assumed to in fact be a civilian, the vast majority of fatalities would remain suspected militants rather than civilians – indeed, by approximately a 3.4:1 ratio.”

Williams insists that he went into the study with an open mind. “We didn’t know what to think” about the drone program, he said, and he considers his research agnostic on the wisdom of the drone strikes (to say nothing of their legality). “We’re not necessarily trying to alter policy on this,” he said.

Both of the principle authors of New America’s drone strike survey, Peter Bergen and Katherine Tiedemann, are on vacation, but they both still (generously) addressed my questions. All three researchers — Bergen, Tiedemann and Williams — appeared to agree that New America was more methodologically aggressive than Williams in counting as civilians all who could not be clearly identified as militants, which perhaps accounts for the variance in their results.

Bergen observed in a Blackberried message that although his civilian death tallies are higher than Williams’, he has observed that the drone program has increased its accuracy over time, “so the later the the date that the study begins the lower the rate [of civilian deaths] will be.” That’s in line with Brennan’s intimation (he never actually uses the word “drones”) that the drone strikes “are more precise and more accurate than ever before.”

Accordingly, Bergen now pegs the civilian death rate from the drone strikes at 20 percent. Williams pegs it at 3.53 percent. What no one knows, however, is how many outraged Pakistanis take up arms against the U.S. or its allies as a result. There are media reports suggesting that Faisal Shahzad, the naturalized U.S. citizen of Pakistani origin accused of attempting to detonate a car bomb in Times Square, claimed to investigators that his attempted terrorist act was vengeance for civilians killed by the drones. Leaving aside the question of the legality of the drones — which the State Department’s legal adviser claims to result from a September 2001 act of Congress that doesn’t mention the program — only policymakers can determine if the benefits of the drones outweigh the risks of blowback.

[A]pproval of the guidelines is being delayed, primarily by State Department officials who are concerned that formalizing the rules will lead inevitably to greater use of long-term detention by the administration under conditions similar to those at the Guantanamo Bay prison in Cuba, which President Obama has pledged to close.

You have to figure that’s Harold Koh, the State Department legal adviser, taking that position. Since the absence of a new detentions framework for outside Afghanistan — like for, oh, I don’t know, Pakistan and Yemen — creates an incentive for the Obama administration to kill terrorism suspects rather than capture them and put them … somewhere … it casts a new light on Koh’s legal blessing of the administration’s drone strikes. (And, perhaps, assassinations.)

Attorney General Holder briefly touched on a similar point about the geopolitical implications of a terror-detentions system last night, although I didn’t really view what he said as particularly significant. After reading the Los Angeles Times’ piece, however, I wonder if he was sticking up for State’s viewpoint here. You make the call:

[T]here is the issue of international cooperation.   Our civilian courts are well respected internationally.   Our allies are comfortable with the formal and informal mechanisms to transfer terrorism suspects to the United States for trial in civilian court.   As we prove the effectiveness and fairness of military commissions, I expect our allies will take notice.   And I hope they will grow more willing to cooperate with commission trials.

But if the allies aren’t comfortable with the commissions yet, how comfortable will they be with indefinite detention? Especially after the hard-fought battle to close Guantanamo?

Finally, the paper identifies some of the advocates of a new indefinite detention system as coming from the Pentagon. That would make sense, given Col. William Lietzau’s mandate, as Pentagon detentions chief, to come up with new post-Guantanamo detentions policy for the department.

Attorney General Eric Holder will testify on Wednesday to the Senate Judiciary Committee, a long-delayed and much-anticipated round of testimony on all matters facing the Justice Department. It’s likely to become a showdown on Holder’s positions on Justice and counterterrorism. Whether Holder will address assassinations in an open session is, of course, unclear-to-doubtful. Last week I filed Freedom of Information Act requests for the actual rationale adopted by the Obama administration to compel Holder and his colleagues to explain.

The informants provided by the Times relate that the drone strikes are intense enough to defy previous patterns employed by residents to evade them. (Apparently, that’s retaliation for al-Qaeda double agent Abu Dujaanah al-Khorasani’s successful attack on a CIA headquarters in Khost province in December.) They just appear relentless, targeting a lower level of militant than before. More surprising is this bit of information suggesting at least some locals blame al-Qaeda’s Arab recruits for the presence of the drones and not actually the U.S. itself:

Two of the government supporters said they knew of civilians, including friends, who had been killed by being in the wrong place at the wrong time. But, they said, they are prepared to sacrifice the civilians if it means North Waziristan will be rid of the militants, in particular the Arabs.

“On balance, the drones may have killed 100, 200, 500 civilians,” said one of the men. “If you look at the other guys, the Arabs and the kidnappings and the targeted killings, I would go for the drones.”

It’s important not to generalize from this case. But if it turns out this sentiment is fairly widespread — and the Times piece asserts that it is more than it demonstrates that it is — then al-Qaeda is in danger of losing its most important redoubt on the planet. That’s been predicted many, many times in the past, so, again, it’s important to withhold any judgment until more information is available.

Former U.S. Ambassador to the United Nations John Bolton (Ron Lewis/San Mateo County Times/ZUMA Press)

In a potential preview of conservative arguments for rejecting the Obama administration’s new nuclear arms reduction treaty with Russia in the Senate, John Bolton, the former U.S. ambassador to the United Nations under George W. Bush, said the treaty reflected “stunning naivete” and placed it in the context of threats to American sovereignty during a wide-ranging speech to the Heritage Foundation on Tuesday.

[Security1] Bolton, an influential conservative foreign policy official for decades, accused the Obama administration of harboring “a very different view of American sovereignty than a long line of presidents, certainly since Franklin Roosevelt.” Relying on portions of quotes by senior officials and an undefined category of people he characterized as the “international left” and the “academic left,” Bolton said the administration attaches a “near theological significance” to the power of international institutions whose actions threaten the supremacy of the U.S. Constitution.

Tying ratification of the treaty, which cuts American and Russian nuclear weapons stockpiles by 30 percent, to the broader question of the survival of American sovereignty raises the stakes for a key Obama administration priority. In his announcement of the treaty on Friday, President Obama linked it to his vision of a world ultimately free of nuclear weapons, a priority conservatives have derided. Ratification, already an uncertain prospect in a fiercely partisan Senate, will require the votes of at least eight Republican senators, a task made more difficult by the influential Bolton’s portrayal of the treaty as commensurate with a broader assault by Obama on constitutional values.

Advances in arms control would have “a cumulative impact on our sovereignty,” Bolton argued. While he declined to address the merits of the treaty — whose text has not yet been released — Bolton said it reflected Obama’s “almost religious view in the obligations and implications of treaties.” He scoffed at the president’s statement that the U.S.-Russian reduction in their countries’ nuclear stockpiles, which represent over 90 percent of the world’s nuclear weapons, would strengthen global arms control efforts, and suggested that it would spur rogue-state nuclear proliferation.

“I think the people in places like Teheran and Pyongyang say, ‘Fantastic — the United States is coming down, let’s ramp up our production efforts to get to the [nuclear] capability even more quickly,’” Bolton said. “The rhetoric of the arms control advocates often is very divorced from important and legitimate American security concerns.”

Beyond the so-called New START treaty itself, Bolton tied Obama’s foreign policy to what he called a “globalist” effort at replacing ultimate fidelity to the Constitution with fealty to international accords and institutions, a longtime conservative bogeyman, and contrasted it with his own “Americanist” perspective.

“I think if you ask most international law scholars, they’d say, ‘Of course international law trumps the Constitution,’” Bolton said, yoking Obama to that position and suggesting that the administration will never abandon it. “This is a decisive question that we ought to be asking politicians: In the priority, in the hierarchy of legal systems, where does the Constitution fit?”

At least one administration official, State Department legal counsel Harold Koh, came under attack last year for allegedly privileging international law above the Constitution, although Koh last week defended the administration’s legal right to launch drone strikes on al-Qaeda targets far from the battlefields of Afghanistan.

Bolton’s framing comes amid the growing influence of Tea Party activists who frequently question Obama’s devotion to the Constitution, and who are seething over the administration’s recent victory in passing health care reform. It also comes as Republicans in the Senate consider whether they ought to sign the New START treaty or to deal the administration’s agenda an embarrassing international setback.

Senate Republicans have yet to coalesce around a position on New START, especially as Congress enjoys a two-week recess. But the early signs from Senate GOP leaders have not been positive. Senate Minority Leader Mitch McConnell (R-Ky.) and Minority Whip Jon Kyl (R-Ariz.) wrote a letter to Obama the day the treaty was announced, warning that even preambular language remotely linking European missile defense to the treaty is unacceptable, despite public declarations from senior Obama officials flatly stating that the treaty will not hinder missile defense. The early strategy from multiple administration officials to pass the treaty is to remind Republicans, as Secretary of State Hillary Rodham Clinton did Friday, that nuclear weapons treaties with the Russians historically sail through the Senate with over 90 votes.

Jamie Fly, the executive director of the Foreign Policy Initiative, a conservative foreign policy messaging and advocacy organization, said that while skepticism of the treaty’s verification mechanisms and relationship to missile defense is pronounced, he was unsure “anyone on the right is really ready to say [the treaty] shouldn’t be ratified.” Fly said his organization would await the actual text of New START before taking a position, though he added that FPI was “not huge fans of the Russia Reset,” the Obama administration’s effort to revitalize bilateral relations with Russia. “Everyone I’ve talked to on Capitol Hill and around town is in a wait-and-see mode,” he said.

Bolton, a fixture on Fox News, widened the aperture for criticism of New START, urging conservatives to press politicians on sovereignty issues. “We have to insist on getting clear answers from candidates for Congress, from incumbent members of Congress, from the presidential candidates as we get into the presidential season in the not-too-distant future,” Bolton said, “to make it clear that we view sovereignty and the preservation of American sovereignty as a high priority.”

Koh told the annual meeting of the American Society of International Law that the administration is guided by the principles of proportionality — no overreaction to an al-Qaeda attack — and distinction, meaning no civilians can be targeted. There’s more:

Koh also responded to critics who have questioned the legality of such attacks under international law. “[S]ome 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….[S]ome 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.”

I have to go back here to my colleague Dave Weigel’s coverage of the conservative effort last year to keep Koh out of his job because he was allegedly a wild-eyed enemy of American sovereignty. Koh’s chief persecutor was Ed Whelan of the Center for Ethics and Public Policy, who capped tendentious readings of Koh’s writings by contextualizing them in hysterical ways like this:

“What judicial transnationalism is really all about,” wrote Whelan, “is depriving American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.”

Perhaps Whelan would like to explain how launching missiles from unmanned aerial vehicles onto targets in Pakistan and Yemen — which kill, by the New America Foundation’s estimate, one civilian for every two combatants — are the favored policy response of effete European elites. The ACLU, meanwhile, has filed a Freedom of Information Act request to get the formal legal arguments prepared by the Obama team justifying the drone strikes.

Harris caught up with Koh at an American Bar Association meeting:

The administration has made drone strikes the centerpiece of its fight against terrorists, but officials have never said why they believe the program complies with international law. A number of legal scholars and international officials have said the killings could violate certain laws of armed conflict, particularly when they’re carried out in countries where the United States is not at war, such as Pakistan and Yemen.

Koh gave no indication of when the administration might unveil its legal rationale or what it might entail. But he added, “You can expect a more detailed discussion of this to come.” Koh was reluctant to reveal specifics, and he said that the informal venue of a speech was not the appropriate setting to discuss the “complicated” issue.

One imagines Koh thinking: “How about the Wednesday after Never? Does that work for you? Schedule clear?”

Meanwhile, the ACLU filed a Freedom of Information Act request for the legal basis for the drone strikes yesterday, so maybe that’ll put a spring in Koh’s step.

Koh has never said this. The claim originated in a New York Post op-ed which claimed that “a New York lawyer, Steven Stein, says that, in addressing the Yale Club of Greenwich in 2007, Koh claimed that ‘in an appropriate case, he didn’t see any reason why Sharia law would not be applied to govern a case in the United States.’” A letter to the newspaper refuted that claim the next day.

Koh was confirmed to his post in a 62-35 vote, and in two and a half months on the job he has yet to apply Sharia law to anything. But slander like this, if it keeps up, will be part of the campaign against him if Koh is ever nominated for a lifetime court appointment.

My dear friends:

Earlier today, the U.S. Senate voted to confirm my nomination as Legal Adviser of the U.S. Department of State. Starting tomorrow, I will assume that position, and begin a public service leave from my Yale professorship. I cannot tell you how much your countless acts of friendship and support have meant to me and my family during this confirmation process. So many of you went far above and beyond the call to stand up for me. We will never forget it. Nor could I feel more lucky or grateful.

One former Legal Adviser once described his job as “speaking law to power.” I pledge to repay your friendship by doing my very best to serve our country in facing its global challenges.

With more thanks than I could ever express,
Harold

“I thought the vote would be a little closer,” said Perkins. “I think that this nomination is a threat to our whole understanding of American law. But this is typical of this administration, and there’s probably more to come. I think their approach to public policy is like a food fight, throwing everything at the wall and seeing what sticks, as people are dodging and ducking.”

After this I heard Frank Gaffney of the Center for Security Policy address the launch meeting of the new Sovereignty Caucus, where he talked about Koh. “Harold Koh is one of the enemies,” he said, “if that’s not too charged a word, one of the enemies of sovereignty.”

A campaign that delayed Koh’s confirmation by several months will almost certainly come to an end shortly.

UPDATE: Koh was confirmed by the full Senate, 62-35.