Former Obama Administration Lawyer Criticizes Opaque Targeted Killing Policy

The State Department’s former top lawyer on Tuesday offered an at times scathing critique of the Obama adminsitration’s lack of transparency related to the use of drones and other tools in waging a campaign of targeted killingn against alleged al-Qaeda operatives.

Harold Koh, who served in the role of State Department General Counsel throughout President Obama’s first term, delivered a speech at Oxford University titled “How to End the Forever War?” Given the title, Koh’s talk covered a multitude of legal questions surrounding the U.S. government’s ongoing fight against terrorism. Koh said he believed that the Obama administration had gotten off to a good start in its pursuit of terrorists, pointing to the President’s 2009 Nobel Prize speech and his Executive Orders on transparency.

“But since then, to be candid, this Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying,” Koh said, singling out the drone policy as an example of how the lack of transparency from the White House and other parts of the Executive Branch have alienated the American people:

KOH: It has not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control.

The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

Koh made certain not to cast drones themselves as “inherently evil” and to stress that he was not opposed to their use within the laws of war. But he insisted that Obama follow through on his promises and “make public and transparent its legal standards and institutional processes for targeting and drone strikes.” The administration should also, according to Koh, explain why and when Americans can be targeted under the law, clarify how it counts civilian casualties from drone strikes, and release records on those instances where strikes were carried out against a target of questionable value.

Koh isn’t the first former Obama administration official to offer criticism of the targeted killing program. Former Department of Defense counsel Jeh Johnson in March told an audience at Fordham University, “The problem is that the American public is suspicious of executive power shrouded in secrecy. In the absence of an official picture of what our government is doing, and by what authority, many in the public fill the void by envisioning the worst.” Koh also echoed Johnson’s own engagement at Oxford in declaring that the war against Al Qaeda can’t go on forever.

Koh’s statements on the need for more transparancy closely mirror those of CAP Chair John Podesta, as published in a March op-ed. In that piece, Podesta called on President Obama to “[r]elease the legal guidance governing your targeted killing programs, including the justifications for targeting Americans, and take charge of the informed, free and vigorous debate that undoubtedly will follow.”