In recent months, top lawyers for the State Department and the Defense Department have tried to square the idea that the CIA's drone program is lawful with the United States' efforts to prosecute Guantanamo Bay detainees accused of killing American soldiers in combat.
The Obama administration legal team confronted the issue as the Pentagon prepared to restart military commission trials at Guantanamo Bay. The commissions began with pretrial hearings in the case of Omar Khadr, a Canadian detainee accused of killing an Army sergeant during a firefight in Afghanistan in 2002, when Mr. Khadr was 15.
The Pentagon delayed issuing a 281-page manual laying out commission rules until the eve of the hearing. The reason is that government lawyers had been scrambling to rewrite a section about murder because it has implications for the CIA drone program.
An earlier version of the manual, issued in 2007 by the Bush administration, defined the charge of "murder in violation of the laws of war" as a killing by someone who did not meet "the requirements for lawful combatancy" -- like being part of a regular army or otherwise wearing a uniform. Similar language was incorporated into a draft of the new manual.
But as the Khadr hearing approached, Harold Koh, the State Department legal adviser, pointed out that such a definition could be construed as a concession by the United States that CIA drone operators were war criminals. Jeh Johnson, the Defense Department general counsel, and his staff ultimately agreed with that concern. They redrafted the manual so that murder by an unprivileged combatant would instead be treated like espionage -- an offense under domestic law not considered a war crime.
Kenneth R. Harney:
