Washington Post Praises Harold Koh Statement on Drones

Washington Post Praises Harold Koh Statement on Drones

The Washington Post editorializes today in praise of Legal Adviser Koh’s statement on drones in his speech to ASIL on March 25.  It specifically focused on the self-defense distinction in the statement:

Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force (AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.

The Wall Street Journal also praised the speech – or at least the drone warfare part of it – in an editorial a week or so ago.  (Unless I missed something, I don’t believe the NYT has weighed in editorially on this issue.)  The WSJ’s news story on the speech, by Keith Johnson, is here; it has a nice roundup of expert opinion, including Mary Ellen O’Connell, the ACLU’s Jonathan Manes, CFR’s Brett McGurk, and me.

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There is a clear distinction between what is legal under domestic law and what is legal under international law.  Koh is making the case that the US action is or ought to be legal under international law.

However, law does not deal in specifics.  It will not be the US responding to terrorist organizations by attacking them in countries with which the United States is not at war, but rather a country responding to attacks by organizations in a country between which which there is no war.

Is the US administration saying that they would like to set a precedent which will change international law in this way?  Would they be comfortable, for example, with international law condoning an Indian attack into Pakistan against Kashmiri seperatist groups?  Criticism of such an action would be limited to saying it was politically unwise, but legally within India’s rights.

This is not clever policy in the long-term.  I feel that the United States would be better served by instead spending the (substantial) political capital to get an international agreement from Pakistan for all of this.


Quoted in the WSJ, huh?  Nice move!


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