Talking in Circles

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."

My experience of speaking with legal scholars about drone strikes is that nobody agrees on much. However, most contend that these are distinct bodies of law, and their applicability depends on how one conceives of the scope of armed conflict in which the United States is engaged. And if targeted killings are assessed through an international human rights law framework, then some legal scholars contend that they violate many articles of the International Covenant on Civil and Political Rights, to which the United States acceded in 1992. The same motivation that Koh did not delineate back in 2010 could be why the Obama administration will still not in 2013 — namely, that they want to retain flexibility over what legal standards should apply to drones.

The second recommendation should be adopted and implemented by the Obama administration today. But doing so will require that the United States acknowledge that it conducts signature strikes against anonymous military-age males, which no government official has ever done publicly. When CIA Director John Brennan was asked during a House Permanent Select Committee on Intelligence hearing three weeks ago, "Is there any way that you can define and distinguish between targeted strikes and signature strikes by drones?" he stonewalled. "I’m not going to engage in any type of discussion on that here today, congresswoman."

This was reflected by Mark Mazzetti, who recently wrote: "American officials admit it is nearly impossible to judge a person’s age from thousands of feet in the air." Likewise, it will be especially difficult to endorse a methodology for counting civilian casualties when the CIA’s post-strike assessments use terms like "foreign fighters" and "other militants."

When I spoke to Sarah Holewinski, the executive director of the Center for Civilians in Conflict, about Koh’s recommendation, she wondered whether it could be implemented for non-battlefield targeted killings given that the U.S. military will not provide that level of detail for airstrikes in Afghanistan. Holewinski also noted that the Obama administration must first define what it considers a combatant and a civilian before it presents whatever its internal protocols are for civilian harm mitigation — those should be shared with Congress first (we do not know if they are), and then made available for public scrutiny. Furthermore, Holewinski added, "preventing civilian harm isn’t only saying that you do, but also showing and proving it, both with Congress and the public."

Koh’s third recommendation is not likely to be realized, since many would dispute the threat level against which the vast majority of drone strikes occurred, and no administration is going to compel the CIA to present the evidentiary basis for which it determined someone was an imminent threat and should therefore be killed.

When I sent the recommendation to a former senior intelligence official, they replied by e-mail: "1) Never happen. 2) how would you prove ‘threat level’ w/out revealing sources/methods. 3) Wouldn’t you have to do this for all the detainees as well?" Moreover, according to the CIA’s own records, on May 22, 2007, a strike was conducted at the request of Pakistani intelligence to assist the Pakistani Army when it was assaulting an insurgent training camp. Koh could start by explaining how the individuals killed — while providing close air support to Pakistani counterinsurgency operations — posed an imminent threat to the U.S. homeland.

Koh’s Oxford Union speech offered several important recommendations that could significantly improve transparency, oversight, and public knowledge of how the United States conducts lethal counterterrorism operations. Unfortunately, all of the reasons for which they will be difficult to implement and publicly defend are demonstrated in how the Obama administration chose to justify and conduct targeted killings throughout the president’s first term. As was true with issues like government transparency and the closing of Guantanamo, the president and his senior advisers acknowledged concerns regarding U.S. drone strike policies, thus raising expectations that they were serious about reforming them. Rather than engage in a conversation with the public and Congress about such reforms, they default to recirculating old speeches, which contain their own shortcomings that are never addressed.

As the Obama administration prepares its forthcoming drone strike reforms, it should reach out to the former senior civilian and military officials that have spoken out against aspects of U.S. targeted-killing policies and provided their own recommendations. President Obama and his aides admit that how the United States defends and conducts drone strikes is setting a precedent that other states may emulate. Before the White House rolls out its reforms, it should ask itself: "What would we want Beijing to say after it conducts its first drone strike?"