Did Koh Provide a Defense of Targeting Americans Suspected of Terrorism?

Last week, Ryan , Micah , and I discussed the legal and moral implications of targeting Anwar Al-Awlaki, a terrorist who happens to be a U.S. born citizen. Since then Adam Serwer has pointed out a speech that may shed some light on the issue. In a recent lecture to the American Society of International Law, State Department Legal Adviser Harold Koh provides a justification of the administration’s use of drone strikes against suspected al-Qaeda targets that is relevant to our discussion.

On targeting “enemy leaders” for use of lethal force:

[S]ome have suggested that the very act of targeting a particular leader of an enemy force in an armed conflict must violate the laws of war. But individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law. During World War II, for example, American aviators tracked and shot down the airplane carrying the architect of the Japanese attack on Pearl Harbor, who was also the leader of enemy forces in the Battle of Midway. This was a lawful operation then, and would be if conducted today. Indeed, targeting particular individuals serves to narrow the focus when force is employed and to avoid broader harm to civilians and civilian objects.

On whether doing so would constitute an extrajudicial killing:

[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. Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise. In my experience, the principles of distinction and proportionality that the United States applies are not just recited at meetings. They are implemented rigorously throughout the planning and execution of lethal operations to ensure that such operations are conducted in accordance with all applicable law.

On whether doing so would violate the domestic ban on assassination:

[U]nder domestic law, the use of lawful weapons systems—consistent with the applicable laws of war—for precision targeting of specific high-level belligerent leaders when acting in self-defense or during an armed conflict is not unlawful, and hence does not constitute “assassination.”

As Kenneth Anderson at The Volokh Conspiracy says about Koh’s speech, “[I] think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.”

I completely agree. I suspect, however, that my buddies do not.