The US deliberately maintains legal ambiguity about drone strikes even in court

Evidence

Within what legal framework do drone strikes take place today? Where the United States is concerned, it is impossible to say. Everything is blurred. The administration refuses to reply to the question, even in court. A speech given by Harold Koh, legal adviser to the State Department, in 2010 before the American Society of International Law is symptomatic of this calculated opacity. He performs a kind of belly dance, maintaining ambiguity, switching between a variety of registers, using them all at once or in turn but without ever deigning to choose between them, as if he were leaving the final decision until later. In any case, he claims, drone strikes are licit and are undertaken either “in an armed conflict or in legitimate self-defense.” But he does not explain exactly which of these the United States is engaged in, nor how the legal standards for the use of lethal force would differ depending on whether they were operating in the first or the second of those two situations. Philip Alston, the United Nations special rapporteur, comments, “He very casually said, ‘Well, we are applying either the law of armed conflict or the rules governing the right to self-defense of a state.’ Now, those two sets of rules are radically different.” — Grégoire Chamayou, A Theory of the Drone, 536

Categorization

• QUESTION: How did Koh’s choice of ‘either/or’ phrasing survive legal scrutiny — and what would a court have required?
• XREF: connects to: Drones cannot comply with law-enforcement rules because they offer no graded force options — Grégoire Chamayou, A Theory of the Drone, 542; Clarity on legal framework would prohibit most current drone strikes; US justifies drone strikes by blending two inconsistent legal paradigms (+10 more)

Related

• US justifies drone strikes by blending two inconsistent legal paradigms (similarity 0.93)
• Clarity on legal framework would prohibit most current drone strikes (similarity 0.92)
• Choosing a legal framework would render US drone strikes unlawful (similarity 0.89)
• US dual legal justifications blur the line between armed conflict and self-defense (similarity 0.89)
• Neither law-enforcement nor laws-of-war frameworks can legally justify drone strikes (similarity 0.87)
• Drones cannot comply with law-enforcement rules because they offer no graded force options (similarity 0.82)
• Drone strikes outside declared battlefields violate international law (similarity 0.79)

Broader Connections

• US dual legal justifications blur the line between armed conflict and self-defense #expands (0.80) — Grégoire Chamayou, A Theory of the Drone, 1044
• Drones undermine the tacit geographic limits built into the laws of war #expands (0.70) — Grégoire Chamayou, A Theory of the Drone, 851
• Drone warfare establishes a norm neither war nor peace via imperial immunity #expands (0.70)
• ‘Plausible deniability’ refers to actions that can be denied by the US government. #corroborates (0.60) — Nicholson Baker, Baseless- My Search for Secrets in the…, 385
• War on terror justice neutralizes the rule of law in the name of security #corroborates (0.60)
• Valid purposes in two distinct legal contexts do not justify merging them #qualifies (0.60) — Ruggero J. Aldisert, Agatha D. Aldisert, Logic for Lawyers- A Guide to Clear…, 849