When a former Obama administration legal advisor delivers a tough criticism of the president’s prosecution of the war on terror, what do you see? Evidence of the manifest illegality of the White House’s drone program? An example of Obama’s lack of political will? An invocation of frightening Bush-era legal theories of presidential power?
Welcome to the Rorschach test that is Harold Koh’s recent speech to the Oxford Union.
On Tuesday, Koh, until January the chief legal advisor at the State Department, criticized the White House’s lack of transparency with regard to its drone program, which Koh said has resulted in "a growing perception that the program is not lawful and necessary, but illegal, unnecessary and out of control." That jab was part of a three-part plan laid out by Koh to extricate the United States from the "Forever War" (1. Disengage from Afghanistan; 2. Close Guantánamo; 3. Discipline drones).
Prior to joining the administration, Koh was an outspoken critic of the Bush administration. But once inside government, he served as one of the chief legal architects of the Obama administration’s national security policies, many of which bore a striking resembling to Obama’s predecessor’s. Now, Koh is firing back — if rather gently — at his former employer. But beyond his rather straightforward policy recommendations, it’s not entirely clear how to interpret Koh’s speech. And the varied responses it provoked offer something of a primer on the current state of thinking about Obama’s prosecution of the war on terror.
Over at the Atlantic, Conor Friedersdorf sees the secrecy surrounding the drone program and Koh’s call for its dismantling as proof positive of the program’s illegality. In order to "discipline drones," Koh called on Obama to make public the legal rationale for drone strikes and targeting American citizens overseas, clarify its method for counting civilian casualties, and release the threat assessments behind individual drones strikes. Additionally, Koh called on the White House to send its officials before Congress to testify about the program. All in all, sensible reforms aimed at transparency.
But, as Friedersdorf argues, the fact that none of these things — moves all within Obama’s power to carry out — have happened reveals the drone program’s shaky legal basis, if not its outright illegality:
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.
Writing for her blog Emptywheel, Marcy Wheeler interprets Koh’s argument about how to close Guantánamo as evidence of Obama’s lack of political will to finally erase this stain on America’s human rights record. In his speech, Koh urged Obama to designate a senior White House official with sufficient weight to close down the prison. But that plan, Wheeler contends, bears remarkable similarities to Obama’s failed effort to close Gitmo early in his first term:
Now, I’m all in favor of closing Gitmo and this might be one way to do it. Koh actually improves on the prior plan by admitting the indefinite detainees will have to be released as the war is over, which is legally correct but misapprehends why they’re not being released and why we have to have a Forever War to justify keeping them silent and imprisoned forever.
But Koh’s map for closing Gitmo also misrepresents why appointing Greg Craig himself to carry out the Gitmo task didn’t work. As I traced in real time (see, here, here, and here), to get Obama’s ear, Craig had to fight through Rahm Emanuel. And Rahm preferred to sell out Obama’s human rights promises in exchange for an eventually failed attempt to appease Lindsey Graham. Rahm won that fight. After Rahm won that battle, he scapegoated Craig. Ultimately, when asked why he left, Craig pointed to Rahm.
It wasn’t enough to appoint Greg Craig. Closing Gitmo either required appointing someone with the bureaucratic chops to beat Rahm or someone like him in battle, or someone whom Obama actually entrusts such a battle with. And Holder’s fate – where Obama continues to have trust in him even while he ultimately reversed his decision to try Khalid Sheikh Mohammed in NYC – shows that’s not enough. Heck, Koh stayed on for almost four years, but even battles he presumably thought he had won, like drone rules, he now appears to have lost. Ultimately, then, it’s going to take a really shrewd fighter or … it’s going to take the President wanting to invest political capital in these things more than he did three years ago.
Koh’s emphasis on the need to close Guantánamo reflects the degree to which the Bush administration’s shadow still hangs over the Obama White House — a fact highlighted in the blog Lawfare commentary on Koh’s conception of presidential power. "Look who has discovered inherent presidential powers," Benjamin Wittes observes sarcastically (elsewhere on Lawfare, Steve Vladeck defends Koh against the charge of hypocrisy).
What do you see in this ink blot of a speech?