06/02/2010 05:12 am ET Updated May 25, 2011

Drones and the Laws of War

Current Legal Advisor to the State Department Harold Koh recently appeared at a major forum on international law and justified surprise drone attacks on militants and terrorists. Law professors in the audience strenuously objected.

One argued that the United States must allow an enemy a hearing to dispute his status as a target before any strike. In more shrill tones, commentators have called Koh a "two-faced skunk." They have called the drone attacks "terrorist" and "imperialist" acts.

Koh has clearly dashed some expectations. As Dean of Yale Law School, he was a forceful critic of the Bush administration's War on Terror, but he must now wear the mantle of legitimate state power.

His statement was reasonable and thoroughly consistent with the laws of war:

The US is engaged in a military conflict in Afghanistan and with Al Qaeda. Deadly force is legal so long as it discriminates as much as possible between combatants and non-combatants, is proportional to the threat, and minimizes civilian casualties.

These principles have been the foundation for lawful warfighting for centuries. In the United States, Francis Lieber codified them for the Union Army during the Civil War. Any military-minded lawyer would likely say, "No Duh."

The drone attacks show that the technology of combat has changed dramatically, but the laws of war have remained remarkably stable.

Nevertheless, human-rights activists were upset by the difference between what Koh is doing now and what he seemed to be saying and doing as a critic of the Bush administration.

As a student at Yale Law School, I worked in the Civil Liberties after September 11th Clinic. We helped represent detainees in Guantanamo Bay and Bagram Air Force Base, among other clients.

When I first came to Yale, Harold Koh co-taught the clinic. Over time, his duties as Dean required him to turn his teaching responsibilities over to others, and he ceased to participate in the Clinic's cases.

Nevertheless, while he was teaching, I benefited personally from his keen mind and the hard-nosed questions he posed to me in preparation for appearances in federal court.

Later I worked alongside human-rights advocates who argued that prisoners of war in a foreign land are entitled to all the protections of the U.S. Constitution, and it was common to read quotes of professors and lawyers in the media alleging that there was no war in Afghanistan.

So the "shock and awe" experienced by activists in the face of Koh's apostasy should come as no surprise. They stand in another long-standing tradition: a Quixotic, utopian attempt to use law to ban warfare. Some believe that war (in Afghanistan or anywhere else) is simply inherently illegal.

Although Dean Koh did not work on those cases or espouse these views, they are common in the human-rights community.

When I think about Human Rights Lawyer Koh and State Department Koh, the crux of the difference seems to be the responsibility for legitimate power. In a trial-driven model of justice and activism, lawyers can pick and choose sympathetic clients or champion single-issue causes in the courts.

Advocates do not have to take responsibility for the repercussions. They need not contemplate general consequences. They do not bear the burden of applying the laws they challenge. An advocate in court just focuses on the case of one unique client.

This model of activism can blunt critical thinking. The advocate's world view makes it tempting for human-rights lawyers to reject all unfavorable theories or elevate those that support the client or the cause, no matter how implausible, inconsistent, or irresponsible.

In the September 11th clinic the righteousness of opposing torture and illegal detentions filled our eyes, but we did not have to look to the legitimate uses of sovereign power.

What should legal detention look like? How should our intelligence services interrogate prisoners? How should officers lead in combat? We did not ask those questions.

This story is not meant to "out" the "hypocrite" Koh. His recent justification of drone attacks and lawful warfighting are well thought out and take the nation's interest to heart.

If anything, State Department Koh has demonstrated the courage to speak on behalf of responsible, legal state authority. Human-rights lawyers should resist the temptation to simply attack it.