Bleg for Harold Koh’s ASIL Speech

by Kenneth Anderson

Update:  I have had a chance to watch the video twice — I strongly recommend watching it, as it adds considerable language to the statements in the ASIL press release.  Given how much I have pressed publicly for a statement by the administration’s lawyers, I want to say this much even while I’m still doing a careful lawyerly parsing of the text.

First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement of the US view of the law and its application.  It is measured, and yet exceedingly direct.  My thanks and congratulations to the Legal Adviser for something that stands as clear opinio juris of the United States.  As someone who has been calling every more sharply for a public statement by the administration’s lawyers on targeted killing and drone warfare — most recently in a Weekly Standard article on exactly that theme, and again this week in a sharply worded statement to a House subcommittee hearing, and a clip on NPR this morning recorded several months ago with Ari Shapiro — this was an enormously positive step.

Second, on the substance.  On first read, I think this is a great statement.  It addresses an armed conflict with Al Qaeda, the Taliban, and associated forces.  But it also asserts self-defense several times as an alternative.  I had been greatly concerned, frankly, that the administration’s lawyers would narrowly confine the justification for targeted killing using drones to situations that would really only cover the military using them on active battlefields. But on first read, this statement does not do that at all. It appears to address situations of safe havens, for example, and indeed reasserts the traditional US view — that sovereignty and territorial integrity are important, but the US preserves its rights to go after its enemies in their safe havens.

I want a chance to go over the written text and say something much more exact.  But given how much, particularly this week on account of the Congressional testimony, my criticisms of the administration’s lawyers have been in the news, I would like to make it known as publicly as possible that,  the Legal Adviser’s statement on targeted killing and drone technology is very positive, very strong, and admirably forthright.  My congratulations and thanks to the Legal Adviser.

*

I couldn’t cancel classes tonight after so many snow days, so I unfortunately had to miss the Legal Adviser’s keynote at ASIL – I’m doing this from a mobile, but after rumors that the speech would address drone warfare and targeted killing at least in part, I’m very curious and eager to see it, and wonder if anyone could point me in the direction of a link to an official written text of the speech (I need to be able to read it on my mobile).  Very grateful if anyone can point me that direction.  Thanks.

http://opiniojuris.org/2010/03/25/bleg-for-harold-kohs-asil-speech/

11 Responses

  1. See IntLawGrrls tomorrow, Ken.  Happy to help, Diane

  2. thnxs!

  3. Ken,

    I noted one time that he used the terms armed conflict and self defense in the alternative.  In every other case self defense was related to the existence of armed conflict, with the latter providing the legal authority for the administration’s approach.  

    Is it your position that the use of force in national self defense can sometimes be accomplished without the constraints of the laws of war?  Do you see this as necessary to somehow justify its use outside of an ‘active battlefield’? 

    John

  4. John: rather than try to answer that in the comments, I’ll instead send you over to the discussion in this Weekly Standard article.  It’s up at ssrn here:
    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1561229

  5. North Dakota’s Law Review is just coming out with a symposium issue devoted to UAS,
    http://www.law.und.edu/LawReview/issues/85-3.php

Trackbacks and Pingbacks

  1. [...] at Opinio Juris, Professor Kenneth Anderson offers the following comment on Koh’s speech: First, let me praise Harold Koh for stepping up to the plate.  This is a plain, clear statement [...]

  2. [...] Anderson has a great article on the topic here, and has blogged about the issue here and here. SHARETHIS.addEntry({ title: “Harold Koh- U.S. Government Position on Legality of Drones, [...]

  3. [...] reactions to Koh’s speech, see these two posts at IntLawGrrls, here and here, and this post at OJ by Ken [...]

  4. [...] Bergen and Katerine Tiedemann.  For Kenneth Anderson’s comments praising Koh’s remarks, visit Opinio Juris.  Anderson had previously criticized the Administration’s failure to defend  drone attacks in [...]

  5. [...] such strikes. The remarks of Harold Koh at the ASIL conference, the reaction to that commentary at Opinio Juris and Intl Law Grrls and the symposium on this issue that is forthcoming in the North Dakota Law [...]

  6. [...] commentators zeroed in on his remarks at ASIL concerning the use of force and unmanned aerial vehicles (UAVs). [...]