This more detailed Reuters report follows one some months back confirming the idea that Obama is so rattled by the idea of capturing and imprisoning more terrorists on Guantanamo that drone killings are a preferred alternative.
For me personally, it is particularly sad to see Harold Koh of Yale Law School, under whom I studied and worked (ironically, on the Haitian boat people case involving right to counsel for Haitians detained on Guantanamo) while at Yale Law School, throw away a life time of commitment to the rule of law in service of such a narrow political agenda. To suggest as he has, that these murders can somehow fall within self defense boggles the mind. The fundamental source of support for the self defense claim is Article 51 of the UN Charter which Professor Koh by force of habit carries with him at all times.
Thus, Professor Koh knows that the clause reads as follows:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
In other words as a short term measure a Member State under attack can take action to defend itself until the UN itself can act to restore peace and security. Yet drone murders have become a long standing policy of the US Government, not an interim measure. And the Obama Administration has not brought the Afghan/Pakistan problem to the UN for resolution.
Professor Koh is not stretching the principles of international law, he is shredding them.
The larger story here of course is that the idea that there is an independent force called Al Qaeda or Taliban is specious. As the recent Times Square bombing attempt indicated these acts of terror are complex global operations even when primitive and, as in that case, fall short of their intended objective. That means they are backed by states directly or indirectly, as only states have the resources to support such operations.
The US is really at war (by proxy) with Pakistan and Saudi Arabia, among others, as those states have allowed these armed groups to emerge in order to solve their own domestic or regional security problems. In the case of Saudi Arabia, the ruling family fears a revolt from below so allows religious fundamentalism to flourish (hence 18 of the 19 9/11 hijackers were Saudi). In the case of Pakistan, the Taliban were formed with support of their security forces to destabilize Afghanistan so that Pakistan has lebensraum, particularly relative to its balance of power with India. Thus, it is not a surprise that the Indians play a large role in supporting Karzai against the Taliban and that the Taliban make a habit out of targeting Indian backed operations in the country.
We do not want to say we are at war with Pakistan or Saudi Arabia and so we say instead it is all about these “terrorist” non state actors. That leads us into ridiculous legal contortions that would easily be settled if we straight up said that we are at war with other states. Then it would be legitimate to capture and hold the so-called terrorists because they would be seen for what they are: soldiers of other states. Of course, the Geneva conventions would apply but even more importantly it would be impossible politically to avoid placing the conflict in the hands of the UN and genuine international legal process.
Ironically it is upon that concept of legal process in the international arena that Professor Koh built his career and intellectual reputation. It is also what led many conservatives to oppose his nomination as Legal Counsel to the Department of State.
They need not have worried.