U.S. Drone Strikes Are Justified, Legal Adviser Says The State Department's legal adviser says the U.S. is in armed conflict with al-Qaida and the Taliban and "may use force consistent with its right to self-defense." Harold Koh's comments mark the first time the Obama administration has laid out its legal rationale for drone attacks.
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U.S. Drone Strikes Are Justified, Legal Adviser Says

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U.S. Drone Strikes Are Justified, Legal Adviser Says


U.S. Drone Strikes Are Justified, Legal Adviser Says

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This is MORNING EDITION from NPR News. I'm Renee Montagne.

One of President Obama's first actions in the White House was to order drone missile attacks on suspected terrorists in Pakistan's border region with Afghanistan. The attacks have only increased since then. Some international lawyers, though, believe that the drone attacks are illegal assassinations.

Last night, the State Department's legal advisors explained for the first time why the Obama administration believes the drone strikes are legitimate. NPR's Ari Shapiro reports.

ARI SHAPIRO: During the Bush administration, Harold Koh was dean of Yale Law School and an outspoken critic of some of the country's counterterrorism policies. Here he spoke with NPR in 2004.

Mr. HAROLD KOH (Legal advisor, State Department): The extent to which this administration has let the Geneva Conventions be flouted, has let the Torture Convention be undermined, and then hasn't really gotten to the heart of why that happened, I think will be the epitaph for this administration's human rights policy in the years ahead.

SHAPIRO: Today, Koh is the State Department's legal advisor. He's charged with dismantling, changing or overseeing many of the legal policies he observed from the outside over the last eight years.

As recently as last week at an American Bar Association breakfast, Koh resisted pressure to publicly describe the Obama administration's legal reasoning behind its targeted killings in Pakistan, Yemen and Somalia.

Mr. KOH: Yeah, there are some questions I don't answer with one cup of coffee.

(Soundbite of laughter)

SHAPIRO: Koh said, put it this way - you can expect a more detailed discussion of this to come.

Well, the detailed discussion came last night in a major speech at the America Society of International Law's annual conference.

Mr. KOH: The U.S. is in armed conflict with al-Qaida as well as the Taliban and associated forces in response to the horrific acts of 9/11 and may use force consistent with its right to self-defense under international law.

SHAPIRO: Koh said Congress made that conflict official when it passed a law known as the Authorization for the Use of Military Force right after 9/11.

He said the government takes pains to ensure that the missiles are narrowly targeted to avoid civilian casualties. And he said whether a given person becomes a target depends on various considerations.

Mr. KOH: Including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.

SHAPIRO: He said a state like the U.S. that's engaged in armed conflict or legitimate self defense is not required to provide targets with legal process before using lethal force.

Mary Ellen O'Connell is an international law professor at Notre Dame and she believes drone strikes are illegal. Weeks ago, she said she was eager to hear Koh make his case.

Professor MARY ELLEN O'CONNELL (Law, Notre Dame): It really is stretching beyond what the law permits for this very extreme action, killing another person without warning, without a basis of near necessity, simply because of their status.

SHAPIRO: Status meaning membership in al-Qaida?

Prof. O'CONNELL: Membership in al-Qaida or in the broader group of persons we consider to be combatants.

SHAPIRO: Last night after the talk, O'Connell thanked Koh and said she's still not convinced.

Prof. O'CONNELL: What Im hearing you say is that the Obama administration continues to see that there is such a conception as a global war on terror. And I would just urge you to reconsider...

Mr. KOH: I didn't say that, Mary Ellen.

Prof. O'CONNELL: You believe that it's possible to target...

Mr. KOH: I said a lot of things in my remarks - that's not one of the things I said.

SHAPIRO: Like O'Connell, American University law professor Ken Anderson has studied drone attacks, and he was also eager to hear the administration's legal rationale. Unlike O'Connell, Anderson believes the strikes are legitimate and necessary.

Professor KEN ANDERSON (Law, American University): The alternatives for the United States are not to not use violence and to not use force. The alternatives are whether it's going to be to drop larger-sized bombs on whole villages or larger places, or instead invite the Pakistani army to do a rolling artillery barrage that will simply destroy the entire place.

SHAPIRO: There are still many unanswered questions about these attacks and the legal reasoning behind them. The administration's decision to show a bit of leg last night might increase the pressure to reveal more.

After the speech, ACLU attorney Jameel Jaffer told NPR he'll file a lawsuit to get the Justice Department document laying out the full legal rationale for these attacks.

Ari Shapiro, NPR News, Washington.

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