Harold Koh's Slippery, Inadequate Criticism of the Drone War

The strongest criticism he'll make of Team Obama is that they aren't transparent enough. But its targeted killing policies are problematic for many additional reasons.
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Harold Koh is often asked if he is a hypocrite. During the Bush Administration, as dean of Yale Law School, he established himself as one of the staunchest critics of the president's approach to the War on Terrorism, especially its practice of holding alleged enemy combatants without due process. But during the Obama Administration, as the State Department's legal adviser, he defended a more expansive view of executive-branch power, including President Obama's targeted-killing program, putting him in the awkward position of having objected to detaining accused terrorists without due process but supporting the policy of actually killing accused terrorists.

The Los Angeles Times took note of that seeming contradiction in a news article published earlier this year, just as Koh was leaving the Obama Administration and returning to Yale. Eric Posner, a University of Chicago professor, was quoted explaining what might have happened. "Academics can take strong positions when they are speaking for themselves, but when they go into government, they have to compromise. Koh was asked to join a team," he said. "My guess: He believes he has done more good than not. But it will be interesting to hear what he has to say now."

It is, indeed, interesting.

Koh gave a speech Tuesday at the Oxford Political Union that addressed the War on Terrorism and the way that the Obama Administration has handled it. Criticism of the president's approach is offered at several points. But the speech also obfuscates when it discusses targeted killing.

Team Obama's lack of transparency comes in for the most criticism:

... This Administration has not done enough to be transparent about legal standards and the decisionmaking process that it has been applying. It had not been sufficiently transparent to the media, to Congress, and to our allies. Because the Administration has been so opaque, a left-right coalition running from Code Pink to Rand Paul has now spoken out against the drone program, fostering a growing perception that the program is not lawful and necessary, but illegal, unnecessary, and out of control. The Administration must take responsibility for this failure, because its persistent and counterproductive lack of transparency has led to the release of necessary pieces of its public legal defense too little and too late.

It is certainly true that Team Obama has failed to provide sufficient transparency to the media and Congress, and it is notable that a high-ranking former Obama Administration official is saying so.

But Koh misleads his listeners insofar as he acts as if transparency is the only failure, as if having all the information would persuade Congress and the people that Obama's drone program is legal under national and international law. Here's the paragraph that follows the excerpt above:

As a result, the public has increasingly lost track of the real issue, which is not drone technology per se, but the need for transparent, agreed-upon domestic and international legal process and standards. It makes as little sense to attack drone technology as it does to attack the technology of such new weapons as spears, catapults, or guided missiles in their time. Cutting-edge technologies are often deployed for military purposes; whether or not that is lawful depends on whether they are deployed consistently with the laws of war, jus ad bellum and jus in bello. Because drone technology is highly precise, if properly controlled, it could be more lawful and more consistent with human rights and humanitarian law than the alternatives.

Koh sidesteps the issue he himself identifies as pertinent by spending all of his time, in that excerpt and elsewhere in the drone section of the speech, rebutting the notion that drone technology is inherently evil. He addresses the weakest critique aimed at his former boss because he cannot defend him against the strongest critique. It's easy to spot the subjects on which he can't defend Obama because he switches to the conditional tense to discuss them. He writes that drone technology is highly precise "if properly controlled," knowing damn well about all the instances during the Obama Administration of improperly controlled drones killing innocents.

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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