WASHINGTON — As dean of Yale Law School, Harold Hongju Koh was among the fiercest critics of President George W. Bush’s “war on terror,” arguing that his administration had trampled the Constitution and tarnished America’s international standing by claiming the power to capture “enemy combatants” abroad and hold them without charges at the prison in Guantanamo Bay, Cuba.
The next administration must “restore the rule of law in the national security arena,” end “excessive government secrecy” and set aside the “claims of unfettered executive power,” Koh told a House panel in 2008.
But as the State Department’s legal advisor in that new administration, Koh helped set out a legal justification for policies that include a ramped-up use of unmanned drones to attack and kill suspected terrorists in Pakistan as well as in Yemen and Somalia, far from the combat zone in Afghanistan. Thousands have died, and the targets have included U.S. citizens who were seen as inspiring attacks against Americans.
Koh, who is preparing to return to Yale as President Obama’s first term comes to an end, has become a symbol of national security policies that many feel are not significantly different than those of Obama’s predecessor.
Koh has many defenders who say the administration’s anti-terrorism policies would have been harsher if he were not there. But the surprising turn has left some liberal critics puzzled. Did Koh change, or is there some “deeper pathology” that causes “top administration lawyers to rubber stamp power grabs?” Bruce Ackerman, another Yale law professor, wrote in a news blog.
Obama’s team unquestionably made progress on some fronts. The harsh treatment and even torture of prisoners was ended, and several dozen detainees were repatriated to other countries. But Congress blocked plans to close the Guantanamo prison and to prosecute its remaining detainees before civilian judges and juries.
The rhetoric was toned down as well. Officials no longer speak of a “global war on terror” or “enemy combatants.” They talk instead of applying the “rule of law” to cope with new problems.
But Obama’s drone policy has caused dismay among many human rights activists. When Koh stepped forward two years ago to offer a legal defense, it had a familiar ring. In wartime and in “response to the horrific 9/11 attacks,” the president “may use force consistent with the [nation’s] inherent right of self-defense,” Koh told the American Society of International Law.
As legal authority for the president’s action, he pointed to the congressional authorization for the use of military force adopted just after the Sept. 11 attacks, the same measure Bush’s advisors cited as justification for the Guantanamo detentions. “It is the considered view of this administration,” Koh said, “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.”
Conservative columnists were quick to lampoon Koh for what looked to be an about-face. Where the “old Harold Koh” was outraged by imprisoning suspected terrorists, the new Koh could defend the legality of killing them.
Koh said he heard the same at cocktail hours at conferences of liberals. “I get questions in the following form: ‘You’re a hypocrite, aren’t you?’” he said in a talk to one such group.
Koh declined to comment for this story, but many of his friends and liberal allies were glad to speak up for him. They said it was unfair to blame him for administration policies, and they say he has fought hard within the government for abiding by legal standards and strictly limiting the use of drones.
“I don’t see a contradiction between the old Harold and Harold now,” said Rosa Brooks, a Georgetown law professor who served as a Pentagon lawyer. “I’ve seen Harold in action. He was pushing for human rights, for setting legal standards. He’s very stubborn.”
“He’s exactly the kind of person you want in the government,” said Elisa Massimino, president of Human Rights First. She agreed the drone policy was “problematic,” but said, “Harold is always making the case for complying with international law and the laws of war.”
Many of Koh’s friends and supporters paused to confide he has a “huge ego” and can be “a real pain” to deal with. But they admire his tenacity and his devotion to human rights law.
Koh, 58, was born in Boston, the child of two Korean natives who lived under Japanese colonial rule and later under a Korean dictatorship. His father was a legal scholar and a diplomat and his mother was a sociologist, and both taught at Yale.
A stellar student, Koh studied at Harvard, Oxford and Harvard Law School and was a clerk at the Supreme Court for Justice Harry Blackmun. He first dealt with the Guantanamo prison in 1992 when he led a legal fight up to the Supreme Court on behalf of Haitian refugees who were being held there. His efforts so impressed the State Department that the Clinton administration appointed him an assistant secretary for human rights.
Some former Bush advisors say they are surprised at how little criticism the Obama administration has faced over the drone strikes.
“There was an outpouring of outrage over detainees at Guantanamo, but hardly a peep from foreign governments about the 3,000 reportedly killed by drones in Obama’s first term,” said John B. Bellinger III, the State Department legal advisor under Bush. That may change in Obama’s second term. Drones could become “Obama’s Guantanamo,” he said.
John C. Yoo, the Berkeley law professor who was the focus of ire in the Bush era for the so-called torture memo that justified harsh interrogations, said he found much to like these days.
“I don’t want to speak specifically about Koh’s record,” Yoo said. “There is no doubt that on issues ranging from drones to military commissions to Guantanamo Bay, Obama and his legal advisors performed a 180-degree turnaround once in office. But the nation’s security was better off that they were hypocritical, rather than maintaining a foolish consistency with the immature 2008 campaign views.”
The American Civil Liberties Union and the Center for Constitutional Rights have been as vehement in their criticism of the drone strikes as they were of the Guantanamo prison. In July, they filed a suit over the killing of three U.S. citizens, including a 16-year-old boy, in a drone strike in Yemen.
“When a 16-year-old boy who has never been charged with a crime nor ever alleged to have committed a violent act is blown to pieces by a U.S. missile, alarm bells should go off,” said Pardiss Kebriaei, a lawyer for CCR. “The U.S. program of sending drones into countries … against which it is not at war and eliminating so-called enemies on the basis of executive memos and conference calls is illegal, out of control and must end.”
Yale has announced that Koh will be back in New Haven, Conn., at the end of January. Some in the legal world will be listening closely to what he has to say once he is out of government.
“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,” said University of Chicago law professor Eric Posner. “My guess: He believes he has done more good than not. But it will be interesting to hear what he has to say now.”