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David Weigel | Slate

A year ago, as the presidential race was taking shape, The Washington Post’s pollster asked voters whether they favored the use of drones to kill terrorists or terror suspects if they were “American citizens living in other countries.” The net rating at the time was positive: 65 percent for, 26 percent against.

Today, after a month of Rand Paul-driven discussion of drone warfare, Gallup asks basically the same question: Should the U.S. “use drones to launch airstrikes in other countries against U.S. citizens living abroad who are suspected terrorists?” The new numbers: 41 percent for, 52 percent against.

The lede of the poll is even kinder to Paul, finding as high as 79 percent opposition to targeted killing in the United States. But that’s a new question. On the old question, we’ve seen a real queasy swing of public opinion.

Eric Posner | Slate

Pakistani security personnel examine a crashed American surveillance drone in Pakistan on Aug. 25, 2011
Photo by Asghar Achakzai/AFP/Getty Images.

The Wall Street Journal recently reported on debates within the Obama administration about the legality of the drone war in Pakistan. State Department legal adviser Harold Koh, the former dean of Yale Law School and even more former darling of the left for his criticisms of the Bush administration’s aggressive theories of executive power, plays a prominent role in them. Koh apparently concluded that the drone war “veers near the edge” of illegality but does not quite tumble over it.

That is a questionable judgment. The U.N. Charter permits countries to use military force abroad only with the approval of the U.N. Security Council, in self-defense, or with the permission of the country in which military force is to be used. The U.N. Security Council never authorized the drone war in Pakistan. Self-defense, traditionally defined to mean the use of force against an “imminent” armed attack by a nation-state, does not apply either, because no one thinks that Pakistan plans to invade the United States. That leaves consent as the only possible legal theory.

But Pakistan has never consented to the drone war. Publicly and officially the country has opposed it. Before the raid that killed Osama bin Laden in May 2011, the CIA sent a fax every month to Pakistan’s Inter-Services Intelligence agency that would identify the airspace in which drones would be sent. The ISI would send back an acknowledgment that it had received the fax, and the U.S. government inferred consent on the basis of the acknowledgments. But after the raid, the ISI stopped sending back the acknowledgments.

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