The Guy Who’s Always Right, Harold Koh, Changes His Mind

In her profile of Harold Koh’s flip-flop on drones (and counterterrorism generally), Tara McKelvey shows that Koh joined the Administration with such certitude about his initial position–that drones were assassinations–he pissed everyone off.

“Everybody hated him,” says Cartwright, describing how Koh would rip into him and other people: “He would say, ‘Oh, you military guys, you’re just so stupid.’ ”

One of Koh’s key objections–and one of the obvious weak points in the Administration’s current justification on drones–had to do with the difficulty in showing that drone targets presented an imminent threat.

Koh referred to President Bush as the nation’s “torturer in chief” and told a New York Times reporter in December 2002 that the policy of targeted killings seemed to violate the government’s longstanding ban on assassination: “The question is, what factual showing will demonstrate that they had warlike intentions against us and who sees that evidence before any action is taken?”

But now, after seeing a bunch of classified information that should not change the broad outlines of the law, Koh has decided they’re not extrajudicial killings and assassinations after all. He denies this is a change in his opinion.

“I have never changed my mind,” he says. “Not from before I was in the government—or after.”

Sure, Koh is just one lawyer reviewing these questions, bureaucratically (though not morally, given Koh’s past comments on counterterrorism) a relatively minor one. But McKelvey’s portrait of Koh shows that what has remained unchanged about Koh are not his legal stances, but his certitude that he is correct, whatever his current legal stance.

Compare that with the thoughts of the guy who used to have Koh’s job, William Taft IV.

I ask Taft, “Why does the law matter when everyone thinks something is OK?”

“That is actually a deep question. When a human life is at stake, there needs to be a process for determining that a person can be executed or shot in an armed conflict,” he says. “Otherwise, we will have an individual just deciding that he wants to kill someone.”

“What if it’s the president?” I ask.

“Especially,” said Taft. “He’s the main person who might possibly have this authority, and you’ve got to watch it.”

We have a system that ensures that someone challenges the opinions of those, like Koh, who may be certain but may also be suffering from the tunnel vision of someone seeing the world of classified information our “democratic” government won’t share.  It’s a process that guarantees all the very smart and unwavering in a belief in their own correctness have someone who challenges their certitude.

It’s called due process.

There’s a reason why the people who are certain they’re already right or the people who have unlimited power should not have the ability to approve the killing of someone else with no review. It’s because those people will be least apt to question their own beliefs.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

32 replies
  1. Peterr says:

    You know, there’s a vacancy on the 9th Circuit Court of Appeals for which no one has been nominated. Koh might be a nice fit with Jay Bybee.

  2. greengiant says:

    Hmm… Gareth Williams and then Koh…
    The same NSA filters used for AQ must have been used to record various control frauds and deep captures. 350 billion in drug money a year?

  3. Bob Schacht says:

    Amen, EW!
    Apparently, being close to the middle of the action has a very corrupting influence. BTW, I wonder if the corrupt influence’s name is John Brennan?

    Bob in AZ

  4. harpie says:

    In February of 2011, Tara McKelvey wrote in Newsweek about an interview she did with John Rizzo:

    President Obama is ordering a record number of Predator strikes.

    In November 2011, the DoJ announced it was investigating Rizzo for disclosing classified information in that interview. Harper’s Scott Horton wrote about that here:

    The Rizzo Investigation

    […] Harold Koh, Legal Adviser of the Department of State, has argued that U.S. drone-strike policy involves the meticulous observation of international legal standards, including of the laws of war, but readers of the Rizzo interview are unlikely to be persuaded by this claim.
    […]
    The CIA, by contrast, has emerged since 9/11 as a poster child for the unaccountable use of force. And now it has launched the Rizzo inquiry, for one likely purpose: to chill public discussion in hopes of holding on to its unlawful drone assets.</blockquote

  5. ondelette says:

    The system Harold Koh was referring to in the 2002 quote is actually consistent with his current behavior, and doesn’t consist of judicial review. It consists of making use of the laws of war and the principle of distinction.

    But the problem with applying it to the CIA is that it’s arguable that the CIA isn’t our nation’s military at all, and shouldn’t be. Even many people in our military would argue that.

    As for arguing using the laws of war, there are rules to it, and the government — and Harold Koh — can still be asked to justify each and every name on their lists. It is not without process, it just doesn’t involve the courts. It involves customary and statutory international humanitarian law. People can’t be targeted unless they are engaged in an armed conflict in an enemy continuous combat function or are part of an identifiable enemy military force. So, for instance, if Anwar al-Awlaki is targeted for propaganda on the internet and nothing else, that’s a violation of international law, because propagandists are specifically classed as protected civilians.

    But your quotes have not shown that Harold Koh changed his mind, because he wasn’t referring to due process in courts in his 2002 quote.

  6. FrankProbst says:

    Totally OT to Marcy: Your old friend JudyJudyJudy got a shout-out on “The Daily Show” last night!

  7. emptywheel says:

    @ondelette: If he said it’s extrajudicial killing and/or assassination in the past and now says it isn’t, then has he changed his mind.

    I was trying to balance fair use and the quotes about how much he has pissed off others. I guess I erred too far on the latter side. BUt the full article has him disavowing statements he was quoted as having made in the past.

  8. orionATL says:

    harold honju koh, harvard law school, 1980.

    harvard law, one more time.

    yet another harvard law graduate betrays the nation, the intentions undergirding the constitution, and the spirit of british-american law.

    what a remarkable institution!

    too bad the lsat doesn’t have some way to gauge moral sufficiency or insufficiency.

    to paraphrase dr. johnson:

    nothing concentrates the mind of a striver so wonderfully as the prospect of losing power and influence.

  9. orionATL says:

    ew writes:

    “…But now, after seeing a bunch of classified information …”

    ain’t secrecy wonderful. just think about it: it requires us to trust each other more than we might otherwise.

  10. ondelette says:

    @emptywheel:

    He said then, “‘The inevitable complication of a politically declared but legally undeclared war is the blurring of the distinction between enemy combatants and other nonstate actors,” said Harold Hongju Koh, a professor of international law at Yale University and a former State Department official in President Bill Clinton’s administration. ”The question is, what factual showing will demonstrate that they had warlike intentions against us and who sees that evidence before any action is taken?”

    The problem is one of distinguishing combatants. That isn’t a matter for judicial review in the courts, but it is a matter for international law. If the person you target isn’t a combatant, and the place isn’t a battlefield, then you are committing an extrajudicial killing or assassination. But if it is a combatant and an enemy in an armed conflict to which you are a party, and you are a lawful combatant (i.e. the military), then it is a lawful act of war under the laws of war. That is what he is referring to. It has nothing to do with review in the courts.

  11. emptywheel says:

    @ondelette: But it does have to do with him changing his mind with regards to whether he thought what we were doing was permissible.

    There are two parts to this post:

    1) Koh is fairly certain he’s always right, so much so that he won’t recognize that his view ON THESE SAME ISSUES has evolved

    2) If the people who are making decisions about things like imminent threat–which is one of the areas where Admin claims demonstrably exceed their evidence presented–are sure they’re always right, then they’re not going to distinguish combatants adequately

  12. earlofhuntingdon says:

    @emptywheel: Amen. A standard indicator of failing integrity in a corporate bureaucracy is when a senior bureaucrat protects his superiors (or his own place among them) by engaging in the fantasy that today’s facts, opinions and orders are identical to yesterday’s different ones, and that no one could argue the contrary. (A lower-level bureaucrat would not survive with that approach.) In a corporation, it is an indicator of departmental or corporate corruption or a prelude to bankruptcy.

    Given Mr. Koh’s prior position at the top of the legal academy, his public insistence about his consistency is a significant failing. Emerson put it best over a century and a half ago: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

    As you imply, this small example highlights the falsity of another idea beholden of the power hungry and the monopolist – that self-regulation is sufficient to ensure probity and fair dealing, and that external regulation by a disinterested party is merely playing in God’s playground without knowing the rules or having the right toys. In that regard, there’s little difference among Mr. Obama, Mr. Cheney and John D. Rockefeller.

  13. SpanishInquisition says:

    @ondelette: So what country are we at war with? It can’t be that we are at war with Al Qaeda because alleged Al Qaeda members caught intside the US are arrested on criminal charges (what’s been done for decades for terrorists), not treated as POWs/unlawful combatants even though the US is the front lines. If this is a war, then you can’t try people criminally and you have to let them go when the hostilities end.

  14. thatvisionthing says:

    Hey, please look at this? Due process and secrecy question, disappearing in front of us?

    I was just talking yesterday about how constitutional due process includes juries empowered to nullify prosecutions they find unjust, and how we are not allowed to know that anymore. Juries still have the power, that part of the Constitution has never been amended, the Supreme Court just let it be hid and it only gets crazier and crazier. As wikipedia used to put it (till December 2011 revision):

    Sparf vs US: The case has occasionally been simplistically described as: Since the law has no way to prevent the jury from judging the law, they shall have that right, but only if they do not know it.

    I referred yesterday to Scott Horton’s February 2011 article in Harper’s about Julian Heicklen, the retired professor who was arrested for leafleting about jury nullification outside a New York courthouse. Horton’s article was about the lunacy of that prosecution that turns the First Amendment and our history on its head.

    I wanted to see if Horton had posted a followup, so I searched Harper’s for “Horton jury.” Harper’s searches all the way back to 1850, sorts by relevance, and says there are 14 results. But only 13 show, and the Heicklen article is not among them.

    How can that be? It should be there, and it should be at the top.

    Do you get the same result I do? Is this one of those bubble things, where search engines show different results for different people?

    Or is there some way for the government (courts? DOJ? pixie dust?) or its agents (contractors?) or someone else (1%) to disappear this kind of result on a private website? Scott Horton’s opinion carries real weight. If it is hidden, that is eye-poppingly consistent with the court’s hiding knowledge of jury nullification from jurors, and of Heicklen’s prosecution, in the first place.

    I’m not saying that the Constitution and its due processes can’t grow and change. I’m saying it’s happened without due process, without public review and debate, without votes, without checking and balancing by the other branches and the people, without consensus and amendment, without knowledge, and so it is illegitimate. This strange result from Harper’s makes me wonder how far this can go — ?

    “Now is the seed time of continental union, faith and honor. The least fracture now will be like a name engraved with the point of a pin on the tender rind of a young oak; the wound will enlarge with the tree, and posterity read it in full grown characters.” –Thomas Paine, Common Sense

  15. thatvisionthing says:

    @harpie: Would you try “Horton jury” too (I linked)? I’m still getting the same result today, and I don’t know how to account for the missing 14th result. I actually don’t know how to evaluate this. I found Horton’s article myself for the first time the other day from a link on wikipedia. I was surprised I hadn’t known of it, he’s a favorite of mine and the topic of jury nullification has been a thing of mine for a long time. Sighs for the holes in my vision — and then this happens.

  16. thatvisionthing says:

    Searching “jury nullification” brings up 27 results, with 27 results visible, and the Heicklen article at the top. …?…

  17. ondelette says:

    @SpanishInquisition: Not so fast.

    According to the government, are in a “common Article 3 armed conflict” with al Qaeda. In such things, one party can still be liable for criminal prosecutions. The “front lines” are still the battlefields. There are certain persons in such conflicts who can be targeted off the battlefield.

    Common Article 3 specifically says that it doesn’t stop any criminal law from functioning on one party by the other: “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

  18. harpie says:

    @thatvisionthing: Oh! I see. The search says 14 article, but only shows 13. hmmm. Could it just be a search glitch? The article does come up with the other set of words. [I don’t understand computers at all…they’re quite confounding contraptions].

  19. thatvisionthing says:

    @harpie: I just tried plain “jury” and it says there are 200 matches, and I see the Heicklen article is 8th from the top. Well, dunno. Thanks for checking.

  20. thatvisionthing says:

    @bmaz: By all means, bmaz, collide with error! Please!

    “The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.” – John Stuart Mill

    (Have you read the Heicklen article, and can you address Scott Horton any better than you address me?) (And I’m sorry, I have to go right now, I’m not ignoring you and I’ll check back later.)

  21. spanishinquisition says:

    @ondelette: And just because the government claims something, you believe it? It was a Bushian claim that is ridiculous as it is confined within one country, not sending drones all over world. What would for instance be Article 3 would have been the Civil War (if there had been a Geneva Convention then) between the US government and the rebel Confederates, but that is not all like Al Qaeda. Article 3 is specifically not international character. However, since you do believe it is Article 3, does that mean you’d support domestic assassinations when the government accuses someone of being a terrorist? Afterall that would be far more justifiable under Article 3 than bombing another country.

  22. thatvisionthing says:

    @harpie:

    Map: http://www.dailykos.com/comments/1003638/42750559#c186

    The Onion, September 26, 2001: U.S. Vows To Defeat Whoever It Is We’re At War With

    During the president’s speech Tuesday, two dozen demonstrators gathered outside the White House, chanting and waving placards bearing such slogans as “U.S. Out Of Somewhere”

    uh oh Michigan…

    “America faces a long road ahead,” McCain said. “We do not yet know the nature of 21st-century warfare. We do not yet know how to fight this sort of fight. And I’ll be damned if one of us has an inkling who we will be fighting against. With any luck, they’ve got uniforms of some sort.”

    “Christ,” McCain continued, “what if the terrorists’ base of operation turns out to be Detroit? Would we declare war on the state of Michigan? I suppose we’d have to.”

  23. thatvisionthing says:

    @harpie:

    imo, nobody has ever topped the Onion on this war:

    “America’s enemy, be it Osama bin Laden, Saddam Hussein, the Taliban, a multinational coalition of terrorist organizations, any of a rogue’s gallery of violent Islamic fringe groups, or an entirely different, non-Islamic aggressor we’ve never even heard of… be warned,” Bush said during an 11-minute speech from the Oval Office. “The United States is preparing to strike, directly and decisively, against you, whoever you are, just as soon as we have a rough idea of your identity and a reasonably decent estimate as to where your base is located.”

    Added Bush: “That is, assuming you have a base.”

    Bush is acting with the full support of Congress, which on Sept. 14 authorized him to use any necessary force against the undetermined attackers.

  24. ondelette says:

    @harpie: Members of a military or members of an armed group with “continuous combat function”. There is a document about the role of civilians directly participating in hostilities on the ICRC website.

  25. ondelette says:

    @spanishinquisition: You’re making a mistake. Article 3 is considered to be the law that applies when other international humanitarian law does not apply, like Martens. Are you saying that nothing applies or that there is no conflict? The Congress very clearly declared one, and the Court very clearly stated that IHL applied and that at minimum Article 3 applied.

    If you are saying nothing applies, then you, not me are making the “Bushian” claim. That’s exactly what John Yoo wrote up and George W. Bush proclaimed in January of 2002. That’s a complete fast track to torture, or was the last time.

  26. ondelette says:

    @spanishinquisition:

    Besides, where do you think the prohibition on extrajudicial killings comes from? How about,

    “To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

    (d)the passing of sentences and the carrying out of executions without the previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.”

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