Author: Kenneth Anderson

John Bellinger on Continuity and Change in Detention Policy

Former DOS Legal Adviser (and a path-breaking guest blogger here at OJ when in that role a couple of years ago) John Bellinger has a short opinion column out at the CFR site, April 14, 2010 (corrected link, I hope!), discussing continuity and change in US detention policy on counterterrorism.  John takes up a range of issues, from trials to...

The Koh Speech and Targeting an American Citizen

Adam Serwer, a journalist and blogger at the American Prospect, makes this observation in a very interesting post (linked in Robert Wright’s NYT Opinionator column) at the American Prospect Tapped blog (via The Progressive Realist).  (My apologies for interrupting the symposium also; I'll take a backseat now!):

State Department Legal Adviser Harold Koh’s speech to the American Society of International Law has mostly been read as a justification of the administration’s use of drone strikes against suspected al-Qaeda targets. With the news that the Obama administration has targetedAmerican-born extremist cleric Anwar al-Awlaki for death, I went back to Koh’s explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government’s authority to kill al-Awlaki without due process.

Serwer then walks back through the text of Legal Adviser Koh’s speech, applying the language about drones to the targeting of Anwar al-Awlaki.  He concludes that it could be seen as a justification for that as well.  I think that’s right, and a good observation.  

Robert Wright Is Very Unhappy with Drone Warfare

I am unable to say much at this moment, either to Kevin's question below or to this Robert Wright "Opinionator" blog post in the New York Times, but I did want to flag it for your attention.  Wright is unhappy with both drone warfare and targeting of US citizens, and many other things besides: Students of the law might raise a...

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...

The Latest EU-Greek Bailout and Liquidity Risk

Treat liquidity risk and runs on institutions as fundamentally a question of lack of information - the lack of information on the underlying financial solvency prompting flight from uncertainty.  In that case, the question following the announcement in the press yesterday of the Greek-EU bailout is not so much what it signals about liquidity, as instead what contribution it will...

Drone Warfare and the Koh Speech – A Roundup of Links

It’s not true that everything I do is about drone warfare, but it has taken a lot of my time lately and, of course, a lot of stuff is happening, both on the operational side as well as legal side.  So here’s a little round-up of links, more or less at random.

Assassination and the Koh Speech

Toward the end of the section on drone warfare in Legal Adviser Koh’s March 25, 2010 speech to ASIL is a discussion that runs to US domestic law and regulation.  For the first time in a very long time — it might be since Koh’s predecessor Abe Sofaer addressed the question in a 1989 speech — the meaning of “assassination” in US law and regulation has been addressed in an authoritative and considered way by a senior US government lawyer.  Legal Adviser Koh said with respect to “assassination”:

[S]ome have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

To refresh on the background to this.  Apart from questions of international law, the US has had a domestic ban on “assassination” in the form of an executive order that has been in place (or renewed in slightly different language) since the presidency of Gerald Ford.  In 1976, in the wake of revelations of CIA activities in the Church Committee hearings, President Ford issued EO 11905, the single relevant sentence of which read:  “No employee of the United States Government shall engage in, or conspire to engage in, political assassination.”  President Carter reissued the order in 1978 in slightly different language in EO 12036, which read in relevant part:  “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  President Reagan reissued the order in 1981 using identical language in EO 12333:  “No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.”  EO 12333 was amended by subsequent EO’s, but the specific assassination ban text remains unchanged. That said, the term “assassination” is never defined.  Whole forests have fallen as commentators, in law reviews and elsewhere, have debated its meaning over decades, however.  Does it refer to political leaders?  To whom does it apply or not apply?  Non-state actors?  Terrorist groups?  Political leaders of states with which the United States is at war?  Military-political leaders of such states (given how frequently that is the case)?  There is little material in the record as to what was intended — and perhaps not surprisingly.  What little anecdotal information exists from the EO’s issuance in the 1970s suggests that it was intended as a way of placating Congress, and avoiding an actual statutory ban.  The EO was apparently intended to be vague and undefined, and subsequent presidents — and, note, Congresses — have found that to be a useful ambiguity in which to leave it.  It has the status of a binding executive order in domestic law — and amendable, alterable, and revocable should the President want to do it. I’ve never understood, to be frank, the scholarly agonizing around a single sentence with a wholly undefined term in an order not, and never, codified as a statute.  It defies interpretive settlement, I would have thought, precisely because it was not designed to bear any real legal weight.  It was instead merely a declaration in vague and general terms that whatever wicked killings the CIA did that were revealed in the Church hearings, those would not happen any more, a mea culpa and promise not to do some ill-defined bad things any more.  Well and good — the CIA did some bad and wicked things — but beyond that, one is not really going to get by textual interpretation.  Unsurprisingly, much of the commentary uses the interpretive discussion as a way of launching a normative view of when and what should be acceptable in the way of targeted killing.

Bleg for Harold Koh’s ASIL Speech

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...

Drone Warfare and UAVs in House Subcommittee Hearing

(Note:  I hear Rumors, Unverified Gossip, and Speculation that Legal Adviser Koh will give a formal statement of views on targeted killing and drone warfare at his keynote address at ASIL this week.  I would certainly welcome such a statement, of course - I hope that it would be sufficiently broad so as to encompass what the President is actually...