Harold Koh and the First Office of Legal Counsel Memo

When I compared what appeared in Eric Holder’s March 2012 targeted killing speech and the targeted killing white paper, I discovered two sections that appear in Holder but not the white paper: a section on leaders as targets.

Furthermore, it is entirely lawful – under both United States law and applicable law of war principles – to target specific senior operational leaders of al Qaeda and associated forces. This is not a novel concept. In fact, during World War II, the United States tracked the plane flying Admiral Isoroku Yamamoto – the commander of Japanese forces in the attack on Pearl Harbor and the Battle of Midway – and shot it down specifically because he was on board. As I explained to the Senate Judiciary Committee following the operation that killed Osama bin Laden, the same rules apply today.

And a section asserting that the technology of drones doesn’t change the legal principles behind the use of lethal force.

These principles do not forbid the use of stealth or technologically advanced weapons.   In fact, the use of advanced weapons may help to ensure that the best intelligence is available for planning and carrying out operations, and that the risk of civilian casualties can be minimized or avoided altogether.

But that language was not new to the Holder speech; it appears as two of the main bullet points in Harold Koh’s March 2010 speech addressing, in part, our use of drones.

First, some 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.

Second, some have challenged the very use of advanced weapons systems, such as unmanned aerial vehicles, for lethal operations. But the rules that govern targeting do not turn on the type of weapon system used, and there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict– such as pilotless aircraft or so-called smart bombs– so long as they are employed in conformity with applicable laws of war. Indeed, using such advanced technologies can ensure both that the best intelligence is available for planning operations, and that civilian casualties are minimized in carrying out such operations.

In addition to situating drone strikes within law of war principles, Koh also addressed two other issues that show up in the white paper (and Holder’s speech): due process and assassinations.

Third, some have argued that the use of lethal force against specific individuals fails to provide adequate process and thus constitutes unlawful extrajudicial killing. But 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.

Fourth and finally, some have argued that our targeting practices violate domestic law, in particular, the long-standing domestic ban on assassinations. But under 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.”

I raise all this because Koh’s speech comes between the reported date of the first targeted killing memo — February 2010 — and the date of the second one. (h/t to Snoopdido for pointing this out)

Mind you, Koh’s speech is not the only statement of drone authority that may fall in that period. There are also Dennis Blair’s comments from February 3, 2010 (so probably, but not definitely, before the first memo).

“We take direct actions against terrorists in the intelligence community,” he said. “If we think that direct action will involve killing an American, we get specific permission to do that.”


“We don’t target people for free speech. We target them for taking action that threatens Americans or has resulted in it.”

He added, “The reason I went this far in open session is I just don’t want other Americans who are watching to think that we are careless about endangering … lives at all. But we especially are not careless about endangering American lives, as we try to carry out the policies to protect most of the country and I think we ought to go into details in closed session.”

But Blair’s comments — especially the “we target them for taking actions that have resulted in threats to America whether the actions themselves were a threat” one, as well as the specific Presidential approval one — don’t appear in the white paper or Holder’s speech (except as incorporated into the very broad imminence standard). Koh’s do (they also appear in Jeh Johnson’s speech, and the technology part appears in John Brennan’s speech).

Now, it could be that Blair’s comments reflect the content of that first memo, in which case the June-July memo may be an effort to shore up pretty startling claims (which ultimately would permit the killing of someone for incitement). Or it could be that Koh’s comments reflect the first memo, in which case the memos may be additive, with the general principles introduced by Koh fleshed out in the June-July memo.

But it seems worth noting that Holder’s speech incorporates Koh’s plus the white paper.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

7 replies
  1. JTMinIA says:

    I hold the opinion that all the focus on drones – for being drones (as opposed to some other weapon) – is really off-topic and distraction. The issues (for me, at least) have always been (a) against whom are we using drones, (b) under what authority are we targeting these people, and (c) who is operating the drone.

    No-one would question, for example, the use of a drone against Yamamoto, commander within the military of a country against which we had declared war, as long as the drone was controlled by a uniformed service member. But that had just about nothing in common with Anwar al-Aulaqi.

  2. TarheelDem says:

    Is the argument that drags the justifications into the laws of war (and the Article II claims) the logic that al-Quaeda is functioning as a wanna-be state by making a claim to be interested in establishing a pan-Islam caliphate?

    Because the analogies to state-based militaries make no sense at all. How is a reference to Admiral Yamamoto relevant except as a red herring?

  3. lrfty665 says:

    @JTMinIA: Thank you. The cruise missile (and possibly manned aircraft) attack using cluster munitions that killed 14 women and 21 children three years before Newtown would seem to be a good example of your points.

    Suppose killing women and children with high explosives gets extra points from the dynamite trust funded Nobel committee? Perhaps they will award the President a “cluster” for his medal.

  4. TarheelDem says:

    @JTMinIA: The issue with regard to drones is that by lowering the cost of entering combat, they become available to a wider range of actors including insurgent groups and corporations. That is, they lower the cost of blowback and create instability. Which then further justifies the military-industrial complex.

  5. beowulf says:


    Its a terrible analogy. Army pilots and Navy codebreakers (including a young John Paul Stevens) conspired to kill Admiral Yamamoto but as servicemen, they had combatant privilege.

    CIA pilots are not members of the Armed Forces and don’t have combatant privilege. Title 50 “covert action” drone strikes have a different legal status than USAF’s Title 10 drone strikes in another way. As a covert action, Title 50 has much stronger congressional reporting mandate than military activities do.

  6. Rasmus Xera says:

    Back in December, George Will used this exact same argument, including the Yamamoto reference, in a column which either implied or repeated just about every war on terror fallacy you could imagine. He even thanked John Yoo for his contributions, quoting his definition of the current atmosphere as an “undefined war with a limitless battlefield”.

    On the point about Yamamoto, the comparison is awful for a number of reasons. I wrote at the time, when mentioning the fact that the top two Axis generals targeted for assassination were actually moderating forces: “It’s not as if – outside of war time – the allied forces would have ever dreamed of assassinating either [Yamamoto or Rommel]. Not only would it have been counterproductive, there was no reason to believe either had done anything that required they be ‘brought to justice’.”

    Like the rest of these pathetic arguments, the entire framework relies on you accepting the premise that this is a real war – and equally as justified as WWII to boot. Otherwise, it all falls apart.

    The link to Will’s column, if you dare: http://www.washingtonpost.com/opinions/george-will-drones-have-a-place-in-modern-warfare/2012/12/07/7a91c88a-409f-11e2-bca3-aadc9b7e29c5_story.html

    My lengthy dissection, if you realllllly dare: http://imperialcitizen.blogspot.com/2012/12/how-to-get-absolutely-everything-on-war.html

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