Legal Commentary

Is Harold Koh?s Defense of Drones Also the Defense of Targeting a US Citizen?

By Kenneth Anderson

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):

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 targeted American-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.  Of course, I think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.

My dear friend Sandy Levinson posts briefly on this over at Balkinization, and comments on a speech by Jack Goldsmith at University of Texas:

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the ?anti? and counter-terrorism? policies of the ?second Bush Administration,? i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith?s argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely.

Curiously, this is one of the few matters on which I think that the Obama administration is not actually continuing the Bush administration policies ? at least if policies includes legal justification as well as surface actions.  Legal Adviser Koh?s statement on drones and its explicit appeal to legitimate self-defense apart from armed conflict, as a basis for targeting (and agreeing here with Serwer, including targeting Americans), is simultaneously a break with Bush administration policy (even while, in one sense, broadening it), and a re-affirmation of a legal policy going back to the Reagan-Bush years.

The self-defense assertion is important, and intellectually engaging, precisely because it is not the ground on which the Bush administration claimed its ability to target people.  For the Bush administration, it was always armed conflict, global and plenary; for the Obama administration, it allows for two strikingly different legal rationales.  And yet the self-defense rationale has the further characteristic of being a break with the Bush administration ? while also being a return to a longer, and deeper tradition in the use of force by the United States.

Legal Adviser Koh alluded to the importance and, within the executive branch and the State Department, the independent weight of that traditional jurisprudence in the beginning of his speech, in which he made some important ? but by the press largely not-understood as being important ? prefatory framing remarks about the internal jurisprudence of the executive branch.  Those methodological remarks were at once a response to Koh?s critics on his right, but also a warning (not enthusiastically received, to be sure) to the academic audience at ASIL to his left.

But drones and done targeting constitutes the exception rather than the rule of Obama administration counterterrorism policies and their continuity with the Bush second term; and overall, I quite agree with Jack and Sandy?s assessment.

Full post as published by The Volokh Conspiracy on April 14, 2010 (boomark / email).