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

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.

When he says that drones "could be more lawful" than the alternatives, he elides the fact that the Obama Administration has often used them in an unlawful manner, and invokes state secrets for cover. What drone policy "could be" is irrelevant. The drone policy we have is the problem.

Koh says that Team Obama should be "be more transparent, more consultative, and more willing to discuss international legal standards for use of drones, so that our actions do not inadvertently empower other nations and actors who would use drones inconsistent with the law."

I agree. But there's something maddening about this part of Koh's speech:

First, as President Obama has indicated he wants to do, the Administration should make public and transparent its legal standards and institutional processes for targeting and drone strikes. Second, it should make public its full legal explanation for why and when it is consistent with due process of law to target American citizens and residents. Third, it should clarify its method of counting civilian casualties, and why that method is consistent with international humanitarian law standards. Fourth, where factual disputes exist about the threat level against which past drone strikes were directed, the Administration should release the factual record. By so doing it could explain what gave it cause to believe that particular threats were imminent, called for the immediate exercise of self-defense, and demonstrated -- through the express consent of the territorial sovereign or the inability and unwillingness of  those sovereigns to suppress a legitimate threat.

After transparency, the key is consultation. The Administration should send witnesses to explain its legal standards to Congress, consult with Congress about its methodologies, standards and processes, and patiently explain why the use of force was warranted in particular, well-publicized cases. The Administration should use those same facts and standards to consult with our allies on what the global standards on drone use should be going forward, to reassure them that we are not applying a standard that we would consider unlawful if espoused to justify the use of drones by say, China, North Korea, or Iran.

If Koh believes all that is what should happen, then he believes the Obama Administration's current approach is deeply wrongheaded, and not just because of its indefensible dearth of transparency. It is not "consistent with due process" to target American citizens. The way Team Obama counts civilian casualties is not "consistent with international humanitarian law standards." Obama can't demonstrate that its strikes were all directed against imminent threats. Being more transparent about any of those things will in fact be discrediting, not redemptive.

Hence the secrecy.

And although he precedes everything with, "as President Obama has indicated he wants to do," Koh knows that Obama could do everything Koh endorses, but has in fact chosen not to do it.  

Most laughable is the notion that Team Obama could "reassure" allies that we'd be cool with China, North Korea, or Iran justifying drone strikes using the same standards that we do. No one is dumb enough to believe that. Koh knows damn well that the president, Congress, and the American people would all go ballistic if China or Iran were to use drones just as the CIA does.

Why does he imply otherwise?

"It is the considered view of this administration," Koh said back while he was still at the State Department, "that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war." Someone should ask him, now that he's left the administration, whether that is his considered view.

I won't delve into the question of where Koh's loyalties should have been when he was employed by in the Obama Administration. Now that he's back at Yale, his loyalty ought to be to its mission: "to create, preserve, and disseminate knowledge." His speech could've done that a lot better, but it would've required him to be a lot more forthright about the failures of his former colleagues.