Time for Secretary Clinton to Call Her Lawyer?
If I were the Obama administration, I would be looking to put together an ad hoc task force of senior administration lawyers, led by Harold Koh, to defend the following propositions as matters of law. It is:
- okay to enter a country that is “unable or unwilling,” [temporarily recall Deeks to DOS]
- okay to treat it as armed conflict under jus ad bellum justification of self-defense,
- okay not to undertake the action as law enforcement, versus attack in armed conflict,
- okay to use lethal force,
- okay to attack without warning,
- okay to attack an unarmed, unthreatening, but still lawful target,
- okay to attack without inviting surrender,
- okay to press the attack with lethal force and without pause, the exception being if the target were to succeed in completing the act of surrender — which, in this case, is likely to be never, because there will not be enough time, and
- okay not to give the target time to make an attempt at surrender, even if inclined or even attempting, by pausing or slowing the attack.
This is in shorthand, of course; we are all international lawyers here, and whether you agree or disagree with the propositions, we more or less know what we’re discussing. However, defense of these propositions, if that’s what one wants to do, practically requires someone with Harold Koh’s stature – which is to say, Harold Koh – to impose some legal order on the administration’s current international law chaos.
Were I advising the administration, I’d add that there is also an urgent need for senior military lawyers, ones who are in charge of interpreting the nitty-gritty legal circumstances of surrender, to explain to the public why surrender is not just “wave something white, done,” everyone stop firing. In the comments to an earlier post here at Opinio Juris, two commenters — Alan Kaufman, a former Navy JAG with a distinguished career, and Ian Henderson, author of a well-regarded treatise on targeting law — each weigh in on what surrender means in practical legal terms. They manage to say more than all the senior administration officials put together have managed to say – merely in the comments to a blog post.