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That Harold Koh, Such a ‘Transnationalist’ That He Defends The Legality of Drone Strikes

On March 16, Shane Harris reported that Harold Koh, the State Department’s legal adviser, asserted that the Obama administration’s drone strikes on al-Qaeda and affiliated targets are legal, and would at some point make a more fulsome public case for why that is. Last night, reports Mark Hosenball, Koh delivered.

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.

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