James Cartright

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.

Emptywheel Twitterverse
emptywheel @steveglista I do. Mr EW wants to go too. What time will you be up? @grmakerfaire
2hreplyretweetfavorite
emptywheel RT @ddayen: My story on CA unions killing campaign finance disclosure, from @Salon this week: http://t.co/HQ38zZLvVm
4hreplyretweetfavorite
JimWhiteGNV Roll Tide! RT @NaphiSoc: and the NRA Parents of the Year AWARD goes to..... #UniteBlue http://t.co/01vqJUsEZd
4hreplyretweetfavorite
emptywheel @chinahand Why didn't Argentina think of that? Oh wait. Only likely invader was the UK.
4hreplyretweetfavorite
emptywheel RT @chinahand: Seems Kyiv cannily assuming levels of indebtedness that wl compel West 2 support it unconditionally as its financial ward.
4hreplyretweetfavorite
emptywheel RT @barryeisler: Is there one for the US? RT @BrilliantMaps: The 22 countries the UK has not invaded http://t.co/7eCxQ2ZfSA
4hreplyretweetfavorite
emptywheel @Mario_Greenly My point is simple. A commander who claims not to have checked seized devices in 8 mos is lying. Very simple @dr_davidson
4hreplyretweetfavorite
emptywheel @Mario_Greenly Calling the laptop obviously dubious. Not doubting @HaraldDoornbos @jenanmoussa reported what they were told. @dr_davidson
4hreplyretweetfavorite
emptywheel @dr_davidson Times like this you look for the way to monetize such predictions. http://t.co/ukhGIUZESv
4hreplyretweetfavorite
emptywheel RT @dr_davidson: Right about now I expect the 'moderate' #Syria rebels to find a laptop #ISIS left lying around with WMD plans. Oh... http:…
4hreplyretweetfavorite
emptywheel Sparties are on my telly and I confess to being impressed they're playing the Ducks next week.
4hreplyretweetfavorite
emptywheel @FrankPasquale OK. Now THAT's what I was looking for. And yes, flaneur moment makes it perfect.
4hreplyretweetfavorite
August 2014
S M T W T F S
« Jul    
 12
3456789
10111213141516
17181920212223
24252627282930
31