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April 1, 2010
Notes from the Pentagon

Drone war legal
State Department legal adviser Harold Koh has outlined the Obama administration's war policies and defended the legality of using one of the premier weapons in the war against al Qaeda: precision-guided missile strikes by unmanned aerial vehicles against terrorist leaders.a

Mr. Koh, in a speech March 25, sought to answer critics who say the drone strikes are illegal, stating that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."

Missile strikes by remotely piloted Predators and other UAVs emerged in recent months as a highly effective weapon for the military and CIA, and one that inflicted heavy losses on al Qaeda and other terrorist groups in Pakistan, Afghanistan and elsewhere.

Mr. Koh told an audience of nearly 200 lawyers gathered for the annual meeting of the American Society of International Law that ongoing al Qaeda attacks give the administration the right under international law to defend Americans with "lethal force, ... including by targeting persons such as high-level al Qaeda leaders who are planning attacks," he said.

Specific targeting rules currently are based on the immediacy of the threat, sovereignty issues of states involved, and the willingness and ability of states to suppress threats posed by the targets, Mr. Koh said.

The Obama administration adopted several "law of war principles" that include limiting attacks to military objectives, and making sure attacks cause few civilian casualties and damage, and that potential collateral damage will not be excessive when viewed in the context of direct military advantages of a planned strike.

"In U.S. operations against al Qaeda and its associated forces - including lethal operations conducted with the use of unmanned aerial vehicles - great care is taken to adhere to these principles in both planning and execution, to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum," Mr. Koh said.

As for critics who say drone attacks against terrorist leaders violate the laws of war, Mr. Koh said terrorists are "belligerents" and thus lawful targets.

Significantly, Mr. Koh also said targeting rules do not limit the types of advanced weapons that are used, such as UAVs, noting "there is no prohibition under the laws of war on the use of technologically advanced weapons systems in armed conflict - such as pilotless aircraft or so-called smart bombs - so long as they are employed in conformity with applicable laws of war."

And Mr. Koh also dismissed critics who say killing terrorists is "unlawful extrajudicial killing."

"A state that is engaged in an armed conflict or in legitimate self-defense is not required to provide targets with legal process before the state may use lethal force," he said.

Last, Mr. Koh said drone attacks against terrorists do not violate domestic laws, such as the ban on assassinations.

A Pentagon official said the speech was coordinated with lawyers throughout government, including CIA and the Pentagon, and reflects a consensus view.

Gay ban sentiment
The U.S. military is not a democracy. If it were, a vote among troops on whether to overturn the law currently banning open homosexuals in the ranks would likely fail, according to two senior military leaders.

Marine Corps Commandant Gen. James Conway said that in his meetings with Marines he asks three questions: Will lifting the ban on open gays harm good order and discipline, undermine unit cohesion, and will Marines be willing to bunk with gay or lesbian leathernecks.

"I won't estimate the percentage but I will tell you the overwhelming number of Marines have significant concern about those issues," Gen. Conway told in an interview published March 25.

"So if perception is reality, we just think that our Corps would not want to see it changed," he said.

Gen. Conway said he would not force Marines to room with gays if the ban is lifted, a policy change that would require increasing funds to create single-room quarters for gays.

The four-star Marine leader's comments were echoed by Army Chief of Staff Gen. George W. Casey, Jr., who also said recently that a majority of Army opposes allowing gays to come out of the closet in uniform.

"You get a sense that, at least within the Army, a little better than half the force is probably opposed to the repeal right now, given what they know," Gen. Casey told Congressional Quarterly, citing opinion polls and personal conversations with small groups.

Gen. Casey said his main worry about efforts led by Defense Secretary Robert M. Gates to repeal the law is that the military currently is "stretched" thin after 8 1/2 years of war. Young combat commanders have told the four-star general that "My God, what else do you want us to do right now?" Gen. Casey said.

"Those are the folks that are frankly the ones that are most at risk," Gen. Casey said, noting that mid-level and noncommissioned officers could "start walking" - leave the Army - and it would take a decade to replace them.

China falls short
The CIA's annual report to Congress on weapons proliferation continues to highlight the nearly decade-long record of China failing to police controls over exports of missiles and weapons technology to rogue states and unstable regions of the world.

The latest annual report to Congress, called the 721 Report after the provision of the 1997 law requiring it, continues the language of past reports in calling China and its state-run and semi-private companies as a major arms proliferator, along with Russia and North Korea.

And like previous years, the report covering 2009 stated that Chinese companies and people "continue to engage in [weapons of mass destruction]-related proliferation activities."

Then, repeating language from previous years, the CIA said that in the "past several years" China's government implemented "new export control legislation" designed to limit missile exports but concluded that "enforcement continues to fall short."

A review of earlier CIA reports going back to 2001 reveals that China has, according to agency analysts, continued to improve its export controls while at the same time continuing sales of missiles and weaponry to North Korea, Iran, Pakistan and Libya, despite the "new" controls.

Last year's CIA report covering 2008 highlighted the new controls but said, in wording identical to this year's document, that "enforcement continues to fall short." In 2007, the agency said "Beijing continued to fall short in its enforcement of its export controls" because of missile and weapons sales. The 2006 CIA report said Chinese "enforcement of the [export control] legislation needs significant improvement."

The 2005 CIA report also noted Beijing's "steps to improve its export control record" but said "despite these efforts, in 2005, Chinese entities continued to support ballistic missiles programs in Pakistan, Iran and North Korea."

And the 2004 report noted Chinese government efforts to "improve" weapons export controls, but said that "despite these efforts" Chinese entities worked with Pakistan, Iran North Korea and Libya on missiles. In 2003, two biannual reports said the same: "Beijing improved its nonproliferation posture" but "the proliferation behavior of Chinese companies remains of great concern." The 2002 report is identical.

"China is pretending to be a good citizen by passing laws, but in reality it is still committed to spreading missile technology around the world, and will probably keep doing it as long as there is money and influence to be gained," said Gary Milhollin, executive director of the Wisconsin Project on Nuclear Arms Control.

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