Food for Thought
At the end of March, Harold Koh, top lawyer at the State Department, used his keynote address at the annual confab of the American Society for International Law to make an announcement: the use of Unmanned Aerial Vehicles to kill suspected terrorists is legal. The drone strikes in Pakistan and Afghanistan are lawful because, Koh delineated, they are done only in national self-defense, their proportionality is always precisely calibrated, and they carefully discriminate civilians from combatants.
There’s both more and less to it than that, but the legal argument itself is of minor importance. What matters is that Koh said it. Harold Hongju Koh: renowned human rights advocate; leading theorist of international law (which, the ASIL conventioneers would happily have told you, is much more civilized than mere national law); until last year dean of Yale Law School and therefore unofficial pope of the American legal system, and former director of the school’s Orville H. Schell Jr. Center for International Human Rights; Obama appointee accused by Glenn Beck and likeminded screamers of wanting to smuggle Sharia law into U.S. courts. All of which is to say, if a liberal lion like Harold Koh says drone strikes are lawful, what more do you need to know?
Koh’s lecture—warmly applauded by the conventioneers—demonstrates once again the amazing elasticity of international law when it comes to the prerogatives of great powers. Koh’s lecture also demonstrates the accommodating suppleness of several international lawyers who, once strong critics of George W. Bush’s anti-terror policies, now see things differently from inside the Obama administration.
* * *
There are in fact alternatives to the drone strikes, the main one being to end them. Not two years ago, John McCain was blasting Obama’s pledge to launch attacks into Pakistan as foolhardy nonsense. (Where Republican hawks once feared to tread, humanitarian angels now rush in.) Though most hawks have quickly grown to love the drone strikes, it is still not at all difficult to find prominent military intellectuals who favor the alternative of halting the policy full stop. David Kilcullen and Andrew Exum, respectively a former adviser to General Petraeus and a former Army captain who served in Iraq and Afghanistan, are both leading theorists of counterinsurgency warfare at the Center for a New American Security. They have testified before Congress that drone strikes are perceived to be wildly inaccurate—killing, they say, 700 people in attacks on 14 targets—and are undermining the “hearts and minds” offensive that is central to the campaign. They recommend scrapping drone attacks. And then there is the American Ambassador to Afghanistan Karl Eikenberry, who happens to be a retired Army general. In leaked cables to the president, Eikenberry severely questioned the wisdom of the counterinsurgency campaign and the escalation in a long telegram commonly compared to the Pentagon Papers leaked by Daniel Ellsberg. Is anyone listening to these well-informed skeptics?
Don’t wait for the international legal profession to prick up its collective ears. Leaked videos of bantering gunship crews fatally strafing civilians may trouble the mind, but drone strikes have been absolved by the great humanitarian authority Harold Koh. His keynote address got a few not-buying-it questions from a couple of academics—long may you live, Benjamin Davis and Mary Ellen O’Connell—but this dissonance was washed away by the warm roar of applause at session’s end. A Russian corporate lawyer chum of mine was taken aback by this mellow response to a legal justification for Bush-Cheney policies. “And they say we Russians are brainwashed by our media! No, I did not clap.”
As they say, read the whole thing.
No Comments to “Food for Thought”