The State Department’s top lawyer, Harold Koh, was vilified by the right for being a dyed-in-the-wool liberal. But, speaking for the Administration, today he asserted the legal rationale for continuing drone strikes against suspected terrorist targets in Pakistan and elsewhere.

Koh argued that the U.S.’ use of drones takes into account principles of “distinction” — namely that the attacks are aimed at lawful enemy targets and not civilians — and “proportionality,” which “prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, that would be excessive in relation to the concrete and direct military advantage anticipated.”

Koh said that “great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum” and added that the “procedures and practices for identifying lawful targets are extremely robust.”

The UN’s chief on Extrajudicial Executions has said in the past that the drone strikes violate international law. Koh does not agree, saying that the United States is engaged in armed conflict and has a legitimate right of self-defense to act against “enemy belligerents” like al-Qaeda high-value targets.

Koh seems on shakier ground when talking about “proportionality,” as Adam Serwer says:

There can be a case made that the second principle Koh cites, “proportionality,” might be violated by the drone attacks. A study by Peter Bergen and Katherine Tiedemann of the New America Foundation found that one-third of those killed by drones were civilians. As this map shows, the drone strikes often take place in Pakistan, which is technically outside the Afghan theater of war. The other question is whether or not the strikes themselves are counterproductive from a strategic standpoint, which some counterinsurgency types have argued.

I agree on the counter-productive point, but it’s the legality argument that has raised questions from civil libertarians. The ACLU wants to see the formal legal argument for themselves.

“We take great care” seems like a thin reed upon which to base air attacks which end up killing civilians.

David Dayen

David Dayen