The Washington Post has an editorial today praising State Department Legal Adviser Harold Koh’s March 25 statement defending the legality of drone warfare (part of a long speech on several international law topics). The editorial specifically endorses the Legal Adviser’s invocation of self-defense as a separate ground for using force apart from armed conflict in a technical sense. (Needless to say, I’m pleased by the editorial.)
... Mr. Koh, an unflinching critic of Bush administration anti-terrorism tactics during his years in academia, cited domestic and international law as foundations for the program. The United States is engaged in an “armed conflict” with al-Qaeda and its affiliates, Mr. Koh asserted, and “individuals who are part of such an armed group are belligerents and, therefore, lawful targets under international law.”
He rightly rejected the absurd notion that enemy targets must be provided “adequate process” before the strike occurs. “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,” he concluded.
Mr. Koh’s reaffirmation of the right to self-defense — even outside the confines of an existing armed conflict — is particularly important. The Authorization for the Use of Military Force (AUMF) after Sept. 11, 2001, empowered the president to pursue those responsible for the attacks, including al-Qaeda and the Taliban. That authority may wane with time. But the right of self-defense is inherent and may be exercised against current and future enemies that pose an imminent threat, including those operating outside of traditional combat zones.