Like many former senior Obama administration officials, Harold Koh has expressed his concerns about U.S. drone strike policies. As the former State Department legal adviser, he played an essential role in articulating and defending the international legal principles that supported "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles," as he stated in a March 2010 speech. Koh was also responsible for coordinating the official U.S. government response to questions raised by U.N. special rapporteurs and within the Human Rights Council. As Koh proclaimed last summer, "I did not come to government because I wanted to work on killing people."
Unfortunately for him, because President Barack Obama authorized over 375 drone strikes killing over 3,000 people while Koh was the State Department's lead lawyer, he's been forced to dedicate a great deal of time to killing people.
Unfortunately, in a speech made two days ago at the Oxford Union, Koh demonstrated that he plans to maintain the fundamental myth of the Obama administration's targeted killing program: that everyone killed is a senior al Qaeda official or member who poses an imminent threat of attack on the U.S. homeland. In April 2010, Koh claimed, regarding targeted killings: "I have never changed my mind. Not from before I was in the government -- or after." Apparently, that sentiment remains true today. Consider several passages from the "disciplining drones" section of his most recent speech:
Few dispute that targeted killing may on balance promote human rights if it targets only sworn leaders -- like bin Laden himself -- to save the lives of many innocent civilians from unprovoked attack.
Few dispute this because it is irrelevant to the vast majority of individuals that have been targeted with drones: militants in Pakistan who pose a threat to U.S. troops in Afghanistan, and those individuals primarily focused on domestic insurgencies in Pakistan and Yemen. But using bin Laden's name as the reference point and justification for drone strikes is intended to perpetually link all U.S. counterterrorism operations to the tragedy of 9/11.
Koh then invites his audience to imagine what the U.S. response to 9/11 would have been if Al Gore had been elected president. Koh claims that there would have been "100 percent approval" if a President Gore stated:
We must incapacitate -- by capture if possible, by killing if necessary -- Osama bin Laden and his senior operational leaders -- several hundred in all -- who pose a direct threat to the United States.
Again, the American public would have endorsed such a speech -- and if the United States had only captured or killed several hundred al Qaeda leaders (rather than the 3,500 to 4,700 suspected terrorists and civilians that have died to date), this would be relevant. However, thanks to the unprecedented revelations provided by Jonathan Landay, we now know that even the CIA does not think that only senior operational leaders have been targeted. Moreover, I am unaware of any official estimate that al Qaeda had "several hundred" senior operational leaders. Al Qaeda never had such a hierarchical and top-heavy organizational structure. It was more Bloomberg than Pentagon.
Koh then admirably makes several recommendations to the administration, three of which would be useful reforms:
Make public and transparent its legal standards and institutional processes for targeting and drone strikes....
clarify its method of counting civilian casualties, and why that method is consistent with international humanitarian law standards....
Where factual disputes exist about the threat level against which past drone strikes were directed, the administration should release the factual record....doing it could explain what gave it cause to believe that particular threats were imminent, called for the immediate exercise of self-defense.
The first part of the first recommendation could have been implemented at any time on Koh's watch. As I noted earlier, U.N. investigators have asked U.S. officials since President George W. Bush was in office to clearly articulate what international laws apply to U.S. targeted killings. The official response released by Koh's office in 2010 declared: "International human rights law and international humanitarian law are complementary, reinforcing, and animated by humanitarian principles designed to protect innocent life."