Defending drones: The laws of war and the right to self-defense
WITHIN DAYS of taking office, President Obama authorized the deployment of unmanned drones to strike terrorism suspects in remote areas of Pakistan. Although first employed during the Bush years, drone attacks have been used increasingly during the Obama administration. They have, in short, become a centerpiece of national security policy.
They have also triggered fierce criticism by some who equate them with illegal assassinations or "unlawful extrajudicial killing." The administration until recently had not responded, but on March 25, State Department legal adviser Harold Koh offered a welcome and robust defense. In a lengthy speech before the American Society of International Law, Mr. Koh, an unflinching critic of Bush administration anti-terrorism tactics during his years in academia, cited domestic and international law as foundations for the program. The United States is engaged in an "armed conflict" with al-Qaeda and its affiliates, Mr. Koh asserted, and "individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law."
He rightly rejected the absurd notion that enemy targets must be provided "adequate process" before the strike occurs. "A state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force," he concluded.
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 (AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.
Such actions must be undertaken with caution. Mr. Koh asserted that the administration has taken "great care" to ensure that drone strikes are carefully and lawfully executed. "The imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat" are taken into account before striking, he said.
The president personally signs off on targets, and relevant lawmakers are periodically briefed on the program. That accountability is one more reason the drone strikes cannot be described as lawless.