Advancing a Free Society

Thoughts on the Latest Round of Johnson v. Koh

Friday, September 16, 2011

Charlie Savage has a story about a dispute between DOD General Counsel Jeh Johnson and State Legal Advisor Harold Koh over the scope of the president’s legal authority to target members of al Qaeda-affiliated terrorist groups in Yemen (AQAP) and Somalia (Shabbab).  Savage’s story only sketches the contending arguments.  Johnson appears to take the view that if the group falls under the AUMF (the domestic basis of authority), the President is legally authorized to target all its members in a country unwilling or unable to suppress them (which is the U.N. Charter requirement).  And Koh appears to be arguing that international law imposes an extra condition, namely: the United States can kill a member of an affiliated group outside of Afghanistan only if the act against the individual is an act of self-defense, i.e. the U.S. can target only “individuals plotting to attack the United States.”

Continue reading Jack Goldsmith…

(photo credit: David Baker)