The 2015 annual meeting of the American Society of International Law (ASIL) is well underway this week in Washington, DC. Five years ago Harold Koh, as Legal Adviser of the State Department, gave a major speech at the organization’s annual meeting in which he outlined some of the legal rationales for U.S. counterterrorism operations including the armed drones program. Koh is generally viewed as one of the nation’s foremost human rights lawyers and scholars of his generation. His speech that day was “widely praised for its forthright, if narrowly drawn, approach to a controversial policy,” but also drew a fair amount of criticism.
The annual meeting, five years later, provides an occasion to reflect on what it means for human rights advocates to serve in government (especially in times of emergency and war), and presents an opportunity to examine the moral and professional challenges such situations raise. A recent statement organized by some students at NYU also gives reason for a fuller accounting. Let’s set aside some of the language in that particular initiative (a quote by Hannah Arendt that associates Koh with the Nazi functionaries and a suggestion that he and others in the Obama administration are war criminals). The deeper questions raised concern whether and how lawyers can serve as agents of change from within institutions.
The answers to these questions can only be understood if we get fairly deep into the details – context is incredibly important in evaluating how someone like Koh, once inside those corridors of power, fought for the legal and ethical positions in which he passionately believed.
Two important asides:
First, how one views Koh’s efforts may turn on a crucial threshold question. Is the United States conflict with al-Qaeda properly viewed as a war (a “non-international armed conflict,” in the parlance of international law)? If it’s not a war, then the lethal operations constitute extrajudicial killings. If it is a war, then the law of armed conflict applies to operations against enemy fighters and a lot of the killing is legally acceptable. For what it’s worth, this and the prior administration have both taken the position that it is an armed conflict, and so has the Supreme Court (in an opinion written by Justice Stevens), as has Congress under the leadership of different parties.
Second, where do I stand? I should note that as a member of the human rights community, I have criticized and questioned different aspects of the U.S. government’s post-9/11 actions including during the time that Koh served in the administration. I have also praised other aspects of those policies and refuted some of the criticisms. And in 2006 I coauthored a Supreme Court brief in the above case (with Derek Jinks and Anne-Marie Slaughter) arguing that the United States was in an armed conflict with al-Qaeda (for purposes of applying the Geneva Conventions to strike down military commissions). I’m also a friend and former student of Professor Koh, and a friend of some of his strongest critics. (I guess I’m just really friendly.)
I. Change from the Inside
The general topic – of trying to bring about change from within – is perennial and pervasive. Should LGBT individuals and their supporters leave a homophobic church or work inside it toward a day when their priest blesses same-sex marriages? Should students with more radical Leftist views of American legal practice join one of the most conservative institutions in their view – law school – and try to bring change from within their campus?
I can’t hope to cover here all the ground needed to answer such big questions in our context, but I do want to provide a fuller account of one aspect of Harold Koh’s legacy. I focus here on Koh’s period as Legal Adviser of the State Department and on his efforts to bring post-9/11 U.S. counterterrorism practices into legal compliance.
In testimony before the Senate Judiciary Committee in September 2008, Professor Koh strongly signaled the views he would bring to the next administration if asked to serve. He criticized abuses of governmental power in reaction to 9/11 and detailed the legal and policy flaws of what he called “the infamous list [that] includes: Abu Ghraib; Guantanamo; torture and cruel treatment of detainees; indefinite detention of ‘enemy combatants;’ military commissions; warrantless government wiretapping and datamining; evasion of the Geneva Conventions and international human rights treaties; excessive government secrecy and assertions of executive privilege; attacks on the United Nations and its human rights bodies, including the International Criminal Court; misleading of Congress; and the denial of habeas corpus … for suspected terrorist detainees on Guantanamo.” In his testimony, Koh also recommended that “as soon as the new President takes office he should issue executive orders,” including to close Guantanamo, end torture, and comply with the Geneva Conventions. As Gregory Johnsen observed, “two days after Barack Obama took the oath of office on the balcony of the U.S. Capitol building, he put Koh’s advice into action.”
What did Professor Koh then do once he joined the administration?
First, on human rights treaties, Koh greatly unsettled the administration by issuing a 56-page memorandum concluding that the International Covenant on Civil and Political Rights must apply to U.S. actions abroad and in situations of armed conflict. On his last day in office, he issued a 90-page memo stating the same for the Convention Against Torture. The memos were subsequently leaked to the New York Times, and helped to change the course of the administration’s positions when it represented the United States in Geneva.
Second, as Jess Bravin documents in his book, the Obama administration’s decision to restart military commissions faced a roadblock: “The principal obstacle was Harold Hongju Koh, the State Department’s chief lawyer. As professor and dean of Yale Law School, Koh had been perhaps the most influential international law scholar in the American academy.” Bravin explains that “Koh considered military commissions an affront to the rule of law … Koh did all he could to derail it, persuading his boss, Secretary of State Hillary Rodham Clinton, that resuming commissions trials would undermine international cooperation on counterterrorism efforts.”
Secretary Clinton lost that battle, but Koh continued working to reform military commissions from within. In May 2010, the Vancouver Sun reported that “officials in the Obama administration demanded a game-changing rule change for the Guantanamo Bay military tribunal that would have likely scuttled the war crimes murder charge against Canadian-born terror suspect Omar Khadr.” Those officials wanted to strip the commissions of an offence that did not have a basis in international law. The Vancouver Sun identified one person behind this effort: “Among those leading the charge against the contested murder segment was Harold Koh.” This was not an issue with limited effects only on the prosecution of Mr. Khadr. “Omission of the segment could have also obliged prosecutors to trim or abandon “up to one-third” of its cases, according to one inside estimate,” the Sun explained.
Third, despite losing the effort to prevent the commissions from restarting, Koh gained another concession, as Bravin writes: “to mollify Koh, the administration agreed to ask the Senate to ratify agreements expanding protections under the Geneva Conventions, including one that had been collecting dust since President Reagan signed it in 1987.”
Fourth, Daniel Klaidman’s book details a pivotal moment in the administration’s decision to refocus on closing Guantanamo—when political expedience might have traded off that issue with other concerns. At a meeting in the Oval Office, Klaidman writes that Koh said directly to the President, “In the history of the United States there have been three large-scale internments: the Palmer Raids, the Japanese internments, and the Bush administration’s post-9/ 11 detentions. …. Mr. President, if you end up embracing a regime of indefinite preventive detention, it will be your legacy— and it will be worse than what the Bush administration did.” Klaidman’s account suggests that Koh’s bold effort shaped the President’s decision to proceed against the advice of political consultants and recommit to closing the detention facility.
Furthermore, in 2010, the New York Times reported that an internal fissure within the administration had developed over how to define the types of individuals who could be detained without trial as wartime prisoners. The Times identified Koh as the source of opposition to ongoing U.S. practices: “some criticized the notion that the United States could also consider mere supporters, arrested far away, to be just as detainable without trial as enemy fighters. That view was amplified after Harold Koh … became the State Department’s top lawyer in late June. Mr. Koh produced a lengthy, secret memo contending that there was no support in the laws of war for the United States’ position in the Bensayah case. Mr. Koh found himself in immediate conflict with the Pentagon’s top lawyer.” How important a legal question was this? “‘Beyond the technical legal issues, this debate is about the fundamental question of whom we are at war with,’” Professor Noah Feldman told the New York Times.
Most importantly, for the purposes of our discussion, what about the drones program, targeted killing, and lethal operations, which were the foci of Koh’s speech at the ASIL annual meeting? Koh took the lead on specific ways to bring U.S. actions into compliance with international law and, even above what international law might require, with respect to humane and reasonable policy. Of course application of the Geneva Conventions and international human rights treaties to U.S. actions in foreign countries would constrain the U.S. military, but the most direct challenges including targeting and the scope of the conflict with al-Qaeda. On those fronts, Koh has been described as an individual who was perceived by other officials as the leading human rights advocate inside the administration and who pushed back hardest against elements inside the Pentagon and CIA. His pushback and proposed legal constraints on targeted killings were such that they “drove the operators crazy.” As one measure of resistance, Koh developed a test that called for targeting only senior members of enemy forces on the theory that “a low-level member, like a driver or a cook, was easily replaced and therefore posed no unique threat to the United States or its interests,” Klaidman writes.
Another incredibly important legal issue in lethal targeting involved whether the United States could try to kill any member of an al-Qaeda affiliated group operating in Somalia or Yemen or only those individuals who directed their hostilities toward attacking the United States. According to a New York Times story in 2011, the issue pitted Koh once again against the General Counsel of the Defense Department. What was at stake were thousands of lives. As the Times described it, “the debate…centers on whether the United States may take aim at only a handful of high-level leaders of militant groups who are personally linked to plots to attack the United States or whether it may also attack the thousands of low-level foot soldiers focused on parochial concerns.” The Times added: “State Department lawyers are trying to reach out to European allies who think that there is no armed conflict, for legal purposes, outside of Afghanistan, and that the United States has a right to take action elsewhere only in self-defense, the official said.”
Klaidman also recounts a culminating moment in which Koh successfully blocked efforts by the top lawyers of the National Security Council and the Pentagon to expand the list of targets by putting his name and office on the line: “‘The State Department legal adviser, for the record, believes this killing would be unlawful,” [Koh] said slowly and emphatically,’” and other officials may have capitulated for fear that Koh might resign, according to Klaidman’s book.
Gregory Johnsen also explained the larger stakes in Koh’s internal disagreements with the Pentagon’s General Counsel:
“Along with several other officials, throughout the summer and fall of 2009, the two clashed on nearly every aspect of U.S. national security law, with Koh consistently staking out the liberal position and Johnson the more conservative counterargument. No one ever quite came right out and said it, but everyone seemed to realize that they were fighting for the nature of Obama’s presidency. … This was Koh’s attempt to push the pendulum of the Bush years back.”
According to multiple commentators, Koh was the most powerful advocate inside the administration for greater levels of transparency with respect to counterterrorism efforts including the drone program and use of lethal force. And Koh used the 2010 speech before the ASIL to bring the administration toward a greater level of comfort and commitment to public disclosures of its internal legal reasoning.
To be fair, an understandable and legitimate criticism of Koh’s 2010 speech is that he personally vouched for the legality of U.S. targeting practices without providing details of important factual and legal questions involving such programs. That said, there is obviously some point at which the government’s legal advisors will not be able to go in terms of what they reveal. According to Klaidman, Koh himself was not satisfied with the level of transparency he could provide in his speech – nor did he say anyone else should be as far as I know. Koh also kept pressing internally for greater disclosures with the public. As Klaidman explained in a Newsweek article, “It came down to what Denis McDonough, the deputy national-security adviser, cheekily called the ‘half Monty’ versus the ‘full Monty,’ after the British movie about a male striptease act. In the end, the principals settled on the half Monty. As the State Department’s Koh continued to push for the maximum amount of disclosure, McDonough began referring to that position as ‘the full Harold.’”
II. Change from the Outside
Needless to say, Professor Koh has continued to pursue these efforts since leaving government and continues to have an imprint on the administration’s actions that bring it into greater compliance with international law. In congressional testimony and in writings, he has led the way for fundamentally rethinking the U.S. response to terrorism and ending “The Forever War;” he has publicly called on the administration to accept his legal conclusions on the extraterritorial application of human rights treaties; he has criticized the continued lack of transparency including over civilian casualties; he has criticized reliance on the 2001 authorization for use of military force for operations against the Islamic State; and he has called for reopening a criminal investigation into the CIA’s torture program.
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Has Professor Koh balanced his efforts with a concern for the vital national security interests of the United States? Of course, and where he strikes that balance may not be to the full satisfaction of some of his critics. But that zone of disagreement is not as great as one might imagine, and no academic institution, for example, would ever condemn individuals on either side of it.
That said, the account I have provided is by no means sufficient to answering the moral and empirical questions I raised at the outset. We should want to know, for instance, whether human rights advocates joining government quiesce social movements and narrow the potential for more fundamental social change or on the contrary help galvanize civic organizations—questions which my own and a larger body of social science research investigates. And we may need to have more fundamental debates about which vision of human rights is compatible with valid national security interests.
However one comes down on those larger empirical and moral questions, it is important to have a full understanding of what one human rights oriented lawyer can try to achieve on the inside. In that sense Koh’s experience is just one data point in a long history of evidence on these foundational questions, and his is a hard act to follow.