More on the Obama Administration's National Security Speeches

Ken and Ben have recently commented on the national security speeches of Obama Administration officials, including most recently the remarks of CIA General Counsel Stephen Preston.  As a former Bush Administration official who would like to encourage more bipartisanship on national security legal issues, I want to join Ken’s and Ben’s positive reviews. The Administration deserves great credit for its concerted effort to describe in detail the domestic and international law rules it is applying in U.S. counter-terrorism operations.  Although Obama Administration lawyers have generally not had to endure the blistering ad hominem attacks that were leveled at many national security lawyers in the last Administration, it is still not easy for them to give speeches on controversial topics that are certain to be picked apart by both Republicans and the human rights community. As I have noted previously, when the United States engages in edgy and controversial international uses of force, I believe it should explain its reasons.  While at the State Department, I worked hard to engage in “international legal public diplomacy” by giving speeches to domestic and foreign audiences on U.S. counterterrorism policy and even spending a week in January 2007 blogging at Opinio Juris (including responding to detailed posts from Ken Anderson and others).  Obama Administration officials have gone farther, with multiple detailed speeches by John Brennan, Jeh Johnson, Harold Koh, Eric Holder, and now Stephen Preston.  (Preston deserves special credit as CIA general counsel for his willingness to speak publicly about the law governing intelligence operations.)  The unsung hero in this legal transparency offensive is Avril Haines, the former State Department lawyer who now serves as the tireless and highly respected NSC Legal Adviser and Deputy White House Counsel.  As is typical of NSC staff, Avril has given none of the major addresses herself but has been involved in drafting and coordinating all of them. I have been in general agreement with much of the legal framework laid out in the Obama Administration’s series of addresses, which generally reflects more continuity than change from the legal policies adopted in the second term of the Bush Administration.  On the theory that there is always room for improvement, I would still like to see Administration lawyers address more clearly the following questions:  1.         In using lethal force against al Qaida suspects in foreign countries, is the Administration applying international humanitarian law or human rights law?  In other words, does it believe that the U.S. is justified in killing members of al Qaida and associated groups in various countries because they are combatants in an armed conflict, or only if each one presents an “imminent threat”?  2.         Does the Administration believe the U.S. is engaged in an “international armed conflict” or a “non-international armed conflict” with al Qaida and the Taliban, or perhaps different conflicts in different places?  3.         What international law rules does the Administration believe applies to persons detained in Guantanamo and Afghanistan?  The Bush Administration was lambasted for not applying the Geneva Conventions to al Qaida and the Taliban, and President Obama was applauded (literally) by Europeans for reaffirming “America’s commitment to abide by the Geneva Conventions” in his Nobel Prize speech.  Does the Obama Administration believe detained members of al Qaida and the Taliban should be treated as Prisoners of War under the Third Geneva Convention or as civilian Protected Persons under the Fourth Geneva Convention, or provided the rights set forth in Article 75 of Additional Protocol I to the Geneva Conventions?  4.         What international law rules apply to targeted killings by drones?  Does the U.S. apply international humanitarian law, or human rights law, or both?  How should these rules apply to the use of drones by other countries?