Bench Memos

On Harold Koh on Targeted Killing of Terrorists

Last week, I called attention (both here and on The Corner) to Harold Koh’s important speech defending the legality of the Obama administration’s targeted killing of terrorists via drone warfare, and I highlighted the strong praise for the speech given by international-law professor Kenneth Anderson, who had been a prominent critic of Koh’s previous unwillingness to speak clearly on the matter. 

As promised, I’ll respond here to those commentators who imagine that Koh’s speech somehow refutes my exposition of the case against his nomination.  (I’m aware of only two bloggers who have voiced this sentiment.  If there are others, I anticipate that my response here will address their arguments.  If I discover that’s not the case, I will supplement this response.)  The basic argument, or sentiment, of the bloggers is, I think, adequately captured in (and not really developed beyond) the title of one of the blog posts:  “That Harold Koh, Such a ‘Transnationalist’ That He Defends the Legality of Drone Strikes.”

Let’s first briefly put this matter of drone warfare in proper context:

The program of targeted killing by drone warfare is the centerpiece of President Obama’s counterterrorism strategy.  That program was in effect before Harold Koh became State Department legal adviser.  If Koh were to have determined that that program violated domestic and international law, he would have been indicting a host of executive-branch officials, from President Obama on down, for complicity in war crimes.  Or, more likely, he would have been forced to leave his position before formalizing that determination.

In my extensive case against Koh (see collections here and here), I don’t think that I wrote anything that, fairly construed, would suggest my belief that Koh would take such a suicidal path.  On the contrary, I credited Koh for bureaucratic “savvy”—for his skill at working “inside [the] bureaucracies and governmental structures” of the United States government “to promote the same changes inside organized government” that he has long been “urging from the outside” in his activist capacity as a “transnational norm entrepreneur.”  Even for someone as aggressive and tenacious as I believe Koh to be, such savvy obviously entails not picking the wrong battle. 

In other words, my two blogger critics have it backwards.  The drone-warfare program is quite likely the most difficult matter on which Koh could implement his transnationalist vision, and his failure to do so on that matter says zilch about what he is doing on other matters.  In this regard, it’s worth noting that a New York Times article from just a few days ago discusses the deep rift between Koh and DOD officials on a range of counterterrorism powers.

To anyone who thinks it’s unfair for me to suggest that Koh himself doesn’t really privately embrace the legal positions on drone warfare that he sets forth in his speech, I’ll offer a few observations:

1.  Koh himself emphasizes in his speech (in his general discussion of his role as State Department legal adviser) that in the “maze of bureaucratic politics, you are only one lawyer, and there is only so much that any one person can do” and that he’s constrained by the “enormous coordination problems” that “[c]ollective government decision-making creates.”  In presenting the legal positions on drone warfare, Koh presents the collective “considered view of this Administration,” not his own view.  (To be clear:  I don’t mean to be misunderstood as faulting Koh for presenting the Obama administration’s view; that’s part of his job.  I also don’t mean to suggest that Koh hasn’t given his imprimatur to the Obama administration’s view; he has.)

2.  It was precisely Koh’s failure in February to offer a legal defense of the drone-warfare program that elicited so much criticism from Kenneth Anderson and others.

3.  A law professor who is one of Koh’s ideological allies draws from Koh’s speech the lesson that “any scholar who wants to maintain his or her credibility should stay far away from the US government.”  Using the occasion to focus on recent testimony by Koh on another topic, the law professor states that he is “quite sure that Koh knows his arguments [on that topic] are both factually incorrect and politically unacceptable” but that “now that he has joined the Obama administration, he has no choice but to parrot the US line.”