We now have a collection of speeches from the past two years by the Obama administration’s top lawyers in the national security agencies and departments on targeted killing and (hypothetically speaking) drone programs – DOS, DOD, DOJ, and most recently, CIA general counsels have all weighed in. To that we add the speech by White House counterterrorism advisor John Brennan.
Critics will not be so happy with this approach to explaining and accounting for policy. Others (well, I at least) think that explanations must come to an end somewhere, and they will almost by definition fall short of what my good friends in the advocacy, journalistic, and academic communities think that should be. (I’ll explain my position on that another day, The Federalist to hand; it runs in large part to the tradeoff and tensions between the authority to act and accountability for action.) But it seems to me that with this array of speeches now out there, folks will be wanting to take them as a single hand of policy, so to speak, and I wanted to be sure that this short, but not unimportant, guest blog post by Harold Koh at Opinio Juris, following the Bin Laden raid last year, not go missing as people pull this stuff together. Among other things, it (one assumes deliberately) uses and reiterates the standard US operational law language for the conditions of surrender:
The laws of armed conflict require acceptance of a genuine offer of surrender that is clearly communicated by the surrendering party and received by the opposing force, under circumstances where it is feasible for the opposing force to accept that offer of surrender. But where that is not the case, those laws authorize use of lethal force against an enemy belligerent, under the circumstances presented here.