{"id":528100,"date":"2010-04-14T22:43:47","date_gmt":"2010-04-15T02:43:47","guid":{"rendered":"http:\/\/opiniojuris.org\/?p=11991"},"modified":"2010-04-14T22:43:47","modified_gmt":"2010-04-15T02:43:47","slug":"the-koh-speech-and-targeting-an-american-citizen","status":"publish","type":"post","link":"https:\/\/mereja.media\/index\/528100","title":{"rendered":"The Koh Speech and Targeting an American Citizen"},"content":{"rendered":"

by Kenneth Anderson <\/em><\/strong><\/p>\n

Adam Serwer, a journalist and blogger at the American Prospect, makes this observation in a\u00a0very interesting post<\/a> (linked in Robert Wright\u2019s NYT Opinionator column) at the American Prospect Tapped blog (via The Progressive Realist). \u00a0(My apologies for interrupting the symposium also; I’ll take a backseat now!):<\/p>\n

\n

State Department Legal Adviser\u00a0Harold Koh<\/strong>\u2019s\u00a0speech<\/a> to the American Society of International Law has mostly been read as a justification of the administration\u2019s use of drone strikes against suspected al-Qaeda targets. With the news that the\u00a0Obama<\/strong> administration has\u00a0targeted<\/a>American-born extremist cleric\u00a0Anwar al-Awlaki<\/strong> for death, I went back to Koh\u2019s explanation for why the drone strikes are legal. It seems to me that his arguments could possibly double as a justification of the government\u2019s authority to kill al-Awlaki without due process.<\/p>\n<\/blockquote>\n

Serwer then walks back through the text of Legal Adviser Koh\u2019s speech, applying the language about drones to the targeting of Anwar al-Awlaki. \u00a0He concludes that it could be seen as a justification for that as well. \u00a0I think that\u2019s right, and a good observation. \u00a0<\/span><\/p>\n

Of course, I think also that targeting al-Awlaki is a good idea, legally justified, and moreover think this a persuasive basis for so concluding.<\/p>\n

My dear friend Sandy Levinson\u00a0posts briefly on this over at Balkinization<\/a>, and comments on a speech by Jack Goldsmith at University of\u00a0Texas:<\/p>\n

\n

I note that Jack Goldsmith gave an excellent talk at the University of Texas last week making the argument that in almost all fundamental respects the Obama Administration is continuing the \u201canti\u2013 and counter-terrorism\u201d policies of the \u201csecond Bush Administration,\u201d i.e., the second-term Bush presidency that freed itself, to at least some extent, from the mad-dog unilaterlism identified with Dick Cheney, David Addington, and John Yoo. It is difficult to disagree with Goldsmith\u2019s argument, empirically. Whether we should be cheered or dejected is, of course, another matter entirely.<\/p>\n<\/blockquote>\n

Curiously, this is one of the few matters on which I think that the Obama administration is\u00a0not<\/em> actually continuing the Bush administration policies \u2014 at least if policies includes legal justification as well as surface actions. \u00a0Legal Adviser Koh\u2019s statement on drones and its explicit appeal to legitimate self-defense apart from armed conflict, as a basis for targeting (and agreeing here with Serwer, including targeting Americans), is simultaneously a break with Bush administration policy (even while, in one sense, broadening it), and a re-affirmation of a legal policy going back to the Reagan-Bush years.<\/p>\n

The self-defense assertion is important, and intellectually engaging, precisely because it is not the ground on which the Bush administration claimed its ability to target people. \u00a0For the Bush administration, it was always armed conflict, global and plenary; for the Obama administration, it allows for two strikingly different legal rationales. \u00a0And yet the self-defense rationale has the further characteristic of being a break with the Bush administration \u2014 while also being a return to a longer, and deeper tradition in the use of force by the United States.<\/p>\n

Legal Adviser Koh alluded to the importance and, within the executive branch and the State Department, the independent weight of that traditional jurisprudence in the beginning of his speech, in which he made some important \u2014 but by the press largely not-understood as being important \u2014 prefatory framing remarks about the internal jurisprudence of the executive branch. \u00a0Those methodological remarks were at once a response to Koh\u2019s critics on his right, but also a warning (not enthusiastically received, to be sure) to the academic audience at ASIL to his\u00a0left.<\/p>\n

But drones and done targeting constitutes the exception rather than the rule of Obama administration counterterrorism policies and their continuity with the Bush second term; and overall, I quite agree with Jack and Sandy\u2019s assessment. \u00a0(Cross posted from Volokh.)<\/em><\/p>\n

<\/p>\n","protected":false},"excerpt":{"rendered":"

by Kenneth Anderson Adam Serwer, a journalist and blogger at the American Prospect, makes this observation in a\u00a0very interesting post (linked in Robert Wright\u2019s NYT Opinionator column) at the American Prospect Tapped blog (via The Progressive Realist). \u00a0(My apologies for interrupting the symposium also; I’ll take a backseat now!): State Department Legal Adviser\u00a0Harold Koh\u2019s\u00a0speech to […]<\/p>\n","protected":false},"author":4222,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[7],"tags":[],"class_list":["post-528100","post","type-post","status-publish","format-standard","hentry","category-news"],"_links":{"self":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/528100","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/users\/4222"}],"replies":[{"embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/comments?post=528100"}],"version-history":[{"count":0,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/posts\/528100\/revisions"}],"wp:attachment":[{"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/media?parent=528100"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/categories?post=528100"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/mereja.media\/index\/wp-json\/wp\/v2\/tags?post=528100"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}