State Legal Adviser Koh defends legality of bin Laden raid

In my Foreign Policy column from last Friday, I noted the muted defense given by Obama administration officials on the legality of the raid against Osama bin Laden. A wide range of international observers had questioned the raid’s legality and the U.S. government seemed restrained in its response to this criticism. In my column I noted the silence of Harold Koh, the U.S. State Department’s legal adviser, who in early 2010 had delivered a long speech defending the government’s use of lethal drone strikes against irregular adversaries against whom the United States is in a state of “armed conflict.”

Today at the Opinio Juris blog, Koh finally made the U.S. government’s case. He quoted heavily from his 2010 drone speech. He also appended some analysis on the legal requirements for completing a battlefield surrender, which should be of interest to all infantrymen.

In my column I surmised that the purpose of the administration’s reticence to thoroughly defend the legality of the bin Laden raid was to avoid declaring a checklist of requirements defining armed conflict status that might end up restricting the legal flexibility of the government against future irregular adversaries. Koh did not appear to add any disclaimers in this regard, so it remains to be seen whether some “lawfare” adversary of the United States will use Koh’s blog post against the government in the future.