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Harold Koh Learns to Love Bomb Power

How Liberal Law Professors Kill

by CHASE MADAR

At the end of March, Harold Koh, top lawyer at the State Department, used his keynote address at the annual confab of the American Society for International Law to make an announcement: the use of Unmanned Aerial Vehicles to kill suspected terrorists is legal. The drone strikes in Pakistan and Afghanistan are lawful because, Koh delineated, they are done only in national self-defense, their proportionality is always precisely calibrated, and they carefully discriminate civilians from combatants.

There’s both more and less to it than that, but the legal argument itself is of minor importance. What matters is that Koh said it. Harold Hongju Koh: renowned human rights advocate; leading theorist of international law (which, the ASIL conventioneers would happily have told you, is much more civilized than mere national law); until last year dean of Yale Law School and therefore unofficial pope of the American legal system, and former director of the school’s Orville H. Schell Jr. Center for International Human Rights; Obama appointee accused by Glenn Beck and likeminded screamers of wanting to smuggle Sharia law into U.S. courts. All of which is to say, if a liberal lion like Harold Koh says drone strikes are lawful, what more do you need to know?

Koh’s lecture—warmly applauded by the conventioneers—demonstrates once again the amazing elasticity of international law when it comes to the prerogatives of great powers. Koh’s lecture also demonstrates the accommodating suppleness of several international lawyers who, once strong critics of George W. Bush’s anti-terror policies, now see things differently from inside the Obama administration.

For Harold Koh had been one of the strongest and most prestigious voices raised against the post-9/11 policies of Bush and Cheney. From his throne at Yale Law, he inveighed against the unlawful use of torture, against the unlawful invasion of Iraq, against the unlawful detentions at Guantanamo. (He has argued that the U.S. risks a permanent spot on the “axis of disobedience” for its chronic flouting of international law.) If it had been W. intensifying the drone strikes in Central Asia, one can easily imagine Koh condemning this practice as another brazen violation of international law. What happened?

It was inevitable that Koh would dutifully come up with legal rationales for whatever the Obama administration decided to do. Part of this is the nature of his job; part of it is to be found plainly written in his own scholarship.

First, running the Legal Advisor’s Office at the U.S. State Department does not mean full freedom of action. In the words of the late international law eminence Tom Franck, at State the legal culture “is that of the defense counsel when it finds ways to justify, post hoc, the client’s actions, rather than that of an expert advising the client to choose the best legally-permissible course of action.” In short, the primary function of State Department lawyers is to come up with legal rationalizations that can pass the smell test. On some small issues, they may have a policy role, but on the big issues—making war, use of drones, setting up prisons outside the reach of any law—their voice is faint, even negligible. Liberals who expected that Harold Koh, the scourge of waterboarding, would bring a human rights sensibility to major foreign-policy issues were going to be disappointed.

Then there is Koh himself. He gained fame in lefty circles for his work to free and grant legal-immigrant status to Haitian refugees warehoused at Guantanamo—yes, it’s been a detention camp before—in the early ’90s. But Koh’s foreign-policy views and opinion of America’s rightful role in the world fit snugly into the Beltway consensus. Israel and Palestine? According to Koh, America was an honest broker in this conflict until Bush and Cheney disengaged in 2001, “with consequences akin to removing adult supervision from a playground populated by warring switchblade gangs.” One might question the aptness of this metaphor since America gives $3 billion dollars a year in military aid to one of these “switchblade gangs,” a patronage relationship that, in the eyes of the world and the parties in conflict, has always disqualified us from being neutral arbiters.

As for Afghanistan, like most international jurists Koh barely bothered to justify the 2001 invasion as a no-brainer exercise of legitimate jus ad bellum. Wasn’t Osama bin Laden there somewhere? That the 9/11 hijackers received much of their indoctrination and training in Hamburg and South Florida should not get in the way of using Afghanistan as an easy target for American vengeance and/or deep concern for the plight of oppressed Afghan women.

For Koh is a true believer both in international law and the inherent goodness of America. His quibble with the doctrine of Exceptionalism is that our reluctance to heed international law prevents us from fulfilling our exceptionally positive role to the max.

This complaisant faith in inherent American benevolence is jarringly illustrated in an anecdote recounted by Dean Judith Areen of Georgetown Law Center in her gracious introduction to Koh’s keynote address. When a military coup deposed the democratic government of South Korea in 1961, Prime Minister Chang Myon was put under house arrest, his imminent execution feared. To plead for Chang’s life, Koh’s parents, then visiting academics in America, brought Chang’s son to the deputy national security adviser in Washington. As Koh’s father recalled, the official turned to the boy, told him that the U.S. knew his father’s whereabouts, and assured him that he would not be harmed. This instance of America’s global omniscience greatly impressed both Koh’s father and Koh himself about their soon-to-be new country’s reach and goodness.

The Washington official—whom Koh has fondly identified in his own retellings—was Walt W. Rostow. Dean Areen didn’t name him in her introduction, as it probably wouldn’t have meant anything to the lawyers seated in the Ritz-Carlton’s basement: many of them were under 40, and nearly half were not American. But to a few, the selection of Walt Rostow—a primary architect of America’s invasion of South Vietnam and an enthusiastic advocate for aerial attacks on North Vietnam—as an exemplar of wise and benevolent foreign policy is deeply disconcerting. According to Rostow’s former colleague Robert McNamara, secretary of defense under Kennedy and Johnson, 3.4 million people were killed in the Vietnam War, a far deadlier war than, for instance, the more recent invasion of Iraq. An intellectual who can cite Rostow as paragon of American goodwill to Asia is capable of saying anything.

Harold Koh is not the only prominent human rights lawyer to have assumed a role inside Obama’s foreign-policy apparatus. Michael Posner, undersecretary of state for human rights and labor (a post previously held by Koh in the Clinton administration), has done excellent work directing the nonprofit he founded, Human Rights First. Yet so far his most significant achievement at State has been to undermine the Goldstone Report, accusing it of systematic anti-Israel bias. That Richard Goldstone himself is a self-professed Zionist with long attachments to Israel matters little. Human rights should never get in the way of protecting a client state.

Samantha Power, author of the Pulitzer-winning polemic against multilateralist constraints on military force to stop human rights abuses, now resides at the National Security Council as senior director of multilateral affairs. A human rights icon and self-dubbed “genocide chick,” she is an advocate of armed intervention in the Sudanese civil war and also a longtime supporter of broadening and deepening the war in Afghanistan, urging the U.S. to be more aggressive in arm-twisting its allies into greater troop contributions. Had John Bolton expressed similar sentiments, much of our intelligentsia would have shrugged him off as the walking tantrum that he is, but from Samantha Power the argument is just human rights with nice biceps.

No matter. That Koh & Co. are such highly accomplished human rights lawyers makes them ideally suited to spin the new administration’s old policies. They command the general respect of the invisible college of international lawyers in academia, media, and the NGOs, so they are going to be far more convincing about the legality of drone attacks, military commissions, and indefinite detention than Bolton and John Yoo could ever be.

In fairness, there are some important differences between the counter-terrorism and security policies of Bush and Obama. According to detainee defense attorney Sabin Willet, Guantanamo now more resembles an archetypical POW camp than a hive of torture chambers. But the continuities are striking. At the ASIL conference, Koh’s predecessor, John Bellinger, lavished sincere praise on Team Obama’s wise decision to more or less preserve the Bush-Cheney policies: “The change in law has been largely cosmetic. And of course there has been no change in outcome.” In international law, as with so many other elite policy fields, conservatives and liberals often seem less principled opponents than clones on parallel career tracks.

When the legal debate is over, one wonders what appeals to international law will be able to accomplish here. Although the UN Charter and various treaties and conventions have proven powerless to prevent the torture of prisoners and wars of aggression against Iraq and Afghanistan, adroit use of international law is quite handy at legitimizing the drone strikes, military commissions, and even judicious use of indefinite detention. Are debates over legality a dead end for their opponents? Since Koh’s announcement of the drone strikes’ legality, the American Civil Liberties Union has vowed to redouble its FOIA efforts to reveal the legal process by which targets are selected and proportionality assessed. Do they think they’re going to find a flaw in the legal reasoning that will somehow convince Koh, Clinton, Obama, and Petraeus himself to roll back the operation?

But it is unfair to expect the Hermione Grangers of the human rights industry—Amnesty International, Human Rights Watch, and the UN’s Special Rapporteur on Extrajudicial Killing have also questioned Koh’s rationale—to do anything else. These NGOs are well equipped to assess a policy’s legality, to publicize its legal shortcomings, occasionally to litigate. But that is the limit. And in our depoliticized public culture, legality has become a flimsy proxy for everything else: prudence, effectiveness, political wisdom, morality itself.

That the use of military force might be permitted by international law and still catastrophic is difficult for even (perhaps especially) the brightest to grasp. Jürgen Habermas and Norberto Bobbio were baffled by opposition to the first Gulf War—after all, it had the authorization of the United Nations! They both recanted their support after being amazed by that war’s carnage, now largely forgotten.

In the meantime, rights nonprofits and the UN should never be mistaken for antiwar groups, as political opposition to our numerous wars is fully outside their mission and their competence—at times outside their tax-exempt status. But in the absence of any vital antiwar movement with clout, a lawyered-up debate over the drone strikes’ legality is better than no struggle at all.

It is now easy to forget that making war is not exclusively a legal issue. Consider this: if the UN Security Council had authorized the invasion of Iraq, would this have transmuted that war into a success? And if a critical mass of international legal authorities agree that the drone assassinations of suspected terrorists is perfectly legal, will this make the strikes any more advisable? Will it lessen the number of civilian deaths—which according to a study by the New America Foundation are one-third of the total? Will it make the whole tactic of drone strikes any less counterproductive to national security?

Kenneth Anderson, professor of law at Washington College of Law and the author of a Weekly Standardcover story making the case for drone strikes, praised Koh’s speech and informed NPR listeners the next morning that the only alternatives are clumsier, less subtle munitions that will kill even more civilians. Anderson is one of the few neoconservatives with intellectual breadth and depth, and is always worth listening to. Here, however, he is mistaken.

There are in fact alternatives to the drone strikes, the main one being to end them. Not two years ago, John McCain was blasting Obama’s pledge to launch attacks into Pakistan as foolhardy nonsense. (Where Republican hawks once feared to tread, humanitarian angels now rush in.) Though most hawks have quickly grown to love the drone strikes, it is still not at all difficult to find prominent military intellectuals who favor the alternative of halting the policy full stop. David Kilcullen and Andrew Exum, respectively a former adviser to General Petraeus and a former Army captain who served in Iraq and Afghanistan, are both leading theorists of counterinsurgency warfare at the Center for a New American Security. They have testified before Congress that drone strikes are perceived to be wildly inaccurate—killing, they say, 700 people in attacks on 14 targets—and are undermining the “hearts and minds” offensive that is central to the campaign. They recommend scrapping drone attacks. And then there is the American Ambassador to Afghanistan Karl Eikenberry, who happens to be a retired Army general. In leaked cables to the president, Eikenberry severely questioned the wisdom of the counterinsurgency campaign and the escalation in a long telegram commonly compared to the Pentagon Papers leaked by Daniel Ellsberg. Is anyone listening to these well-informed skeptics?

Don’t wait for the international legal profession to prick up its collective ears. Leaked videos of bantering gunship crews fatally strafing civilians may trouble the mind, but drone strikes have been absolved by the great humanitarian authority Harold Koh. His keynote address got a few not-buying-it questions from a couple of academics—long may you live, Benjamin Davis and Mary Ellen O’Connell—but this dissonance was washed away by the warm roar of applause at session’s end. A Russian corporate lawyer chum of mine was taken aback by this mellow response to a legal justification for Bush-Cheney policies. “And they say we Russians are brainwashed by our media! No, I did not clap.”

CHASE MADAR is a civil rights lawyer in New York and a translator of Verlaine and Buñuel. He can be reached at: chase.madar@gmail.com

This piece originally appeared in the June 2010 issue of The American Conservative, and is posted with their permission.

 

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