If You Can’t Win the Argument, Pretend it Doesn’t Exist

Spencer Ackerman on the Obama administration’s legal justification for drone strikes:

In March, the State Department’s legal adviser gave a speech asserting that the strikes are legal, not demonstratingwhy they are. The closest that Harold Koh came to articulating his case was to say: The administration doesn’t intentionally kill civilians (“…attacks [are] limited to military objectives and that civilians or civilian objects shall not be the object of the attack…”); it tries to be proportionate (no “attacks that may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof”); and that in any event the Authorization to Use Military Force covers the strikes. (“These domestic and international legal authorities continue to this day.”)

Exactly nowhere in Koh’s speech do the criteria emerge for determining when the administration would cross into illegality in drone targeting. (Thirty percent civilian casualties? What about forty? What about fifty?) We do not know what legal justifications the Justice Department’s Office of Legal Counsel has developed about the drone program. In March, ACLU sued to acquire those and any other justifications; the administration is fighting the disclosure.

This has become one of the favorite legal tactics of the Obama-era DoJ: when confronted over the potentiality criminality of a controversial program, they: (1) either insist that it’s legal because, well, just take our word for it (see above); (2) suggest that even challenging the legality of any actions the federal government may or may not have taken is a violation of state secrets and therefore forbidden (as they did in the case of Binyan Mohammed, who is now legally barred from suing his alleged abductors and torturers); or, my favorite, (3) insist that they’re following strict guidelines for their actions but refuse to disclose what those guidelines are (as is the case with Anwar Al-Awlaki, who the federal government reserves the right to assassinate, but only in specific circumstances to which they alone are privy).

If nothing else, I have to applaud their restraint in serving all of this with a straight face.

If You Can't Win the Argument, Pretend it Doesn't Exist
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9 thoughts on “If You Can’t Win the Argument, Pretend it Doesn’t Exist

  1. Both you and Spencer Ackerman are being unduly uncharitable to Harold Koh, and not just for failing to link to his speech (State.gov). Koh clearly does not say targeted killing is legal merely because the US says so. And Koh is certainly not pretending the argument doesn’t exist, after all, he is giving a speech to the American Society of International Law. Koh argues that the inherent right to self-defense is the core of the legal justification for the drone strikes. Ackerman’s account also fails to realize the import of the criteria Koh outlines. Were the very criteria outlined in his speech negated the drone strikes would be unlawful – disproportionate strikes or strikes made without reference to military objectives are unlawful. Finally, Koh’s speech specifically engages with counterarguments, rebutting four legal objections to drone strikes.* Perhaps Koh’s answers to these legal objections strike you as unconvincing, but ignoring entire passages of Koh’s speech means both you and Ackerman are knocking down a straw man.

    * – A quick rundown and more context of the Koh speech at Inside Justice

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  2. as is the case with Anwar Al-Awlaki, who the federal government reserves the right to assassinate,

    In the middle of WWII could someone go to court and demand that the gov’t tell them whether or not the military is targeting their relative who happens to live in Tokyo and if they are produce proof that he is a legitimate military target or that he has been convicted of a crime using due process of law?

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