Harold Koh Discussion with John Bellinger at ASIL Event

by Kenneth Anderson

Julian mentioned, in his first post on Sarah Cleveland’s UVA talk below, that Harold Koh, legal adviser to State, held an informal public discussion with his predecessor from the Bush administration, John Bellinger.  This was an ASIL event, held at John’s law firm, Arnold & Porter, and moderated by my old friend and ASIL’s Treasurer, Nancy Perkins, also of Arnold & Porter.  CSPAN covered it, and the video is now available:  The Obama Administration and International Law, February 17, 2010.  (If I can find a youtube version from ASIL, I’ll see if I can embed it.)

I was teaching and so could not attend in person, but I have now watched the video and it is a terrific event.  My public thanks to Harold Koh, John Bellinger, and Nancy Perkins for doing it. It’s a good thing for an administration’s senior lawyers, who have a difficult task of both setting out legal policies and often highly abstract and complicated legal arguments – and at the same time communicating them to the public, in part the professionals and lawyers and diplomats, but also to a broader public.  While John was adviser, he experimented with entirely new avenues of discussion and communication, including a guest blogging appearance here at OJ that was very well received.  Harold Koh has also been doing some out of the box engagements, and this kind of unscripted, informal discussion is an outstanding example of that.

(One note I would add is that a very great virtue of this kind of unscripted event is that it is informal, and not every word, phrase, and utterance has been vetted and run through the law-machine for alternative interpretations, and so on.  So although I strongly urge everyone to watch the video closely, I believe equally strongly that one has to adopt a charitable interpretation of what the speaker intends, and not focus on individual words or phrases that, in a formal speech or court filing or testimony, might be far more carefully – but less informatively – phrased.  So, for example, when Justices Breyer and Scalia held a discussion at my law school a few years ago on constitutional comparativism, in writing about it, I declined to quote them directly, preferring to paraphrase, precisely because I thought direct quotation was a disservice to the informal spirit of the occasion.  To hammer on precise words in impromptu settings simply causes lawyers to be ever more circumspect and less forthcoming, and to limit their statements to much less useful formal occasions.)

The conversation ranged across a wide variety of issues, including something that Julian flagged below with respect to Sarah Cleveland’s UVA speech – the pace of treaty exchanges.  John flags Dean Koh on that issue, saying (my summary) that in 2007-2008, the State Department got the Senate to approve more treaties (90!) than at any point in American history.  On the broad question of whether the Obama administration’s international law policies represent continuity or change, Dean Koh suggested somewhat wryly that to the extent that the old policies were good ones, they were being continued, and to the extent they weren’t, they were being changed.  But Dean Koh also pressed the general theme that the Obama administration inherited policies, practical as well as legal, from the previous administration and turning on a dime wasn’t very easy.

Dean Koh was asked about targeted killing, including a specific question about targeted killing aimed at American citizens.  The exchange takes place at approximately minutes 58-65 in the tape.  The context is a question from someone – I believe, but couldn’t quite hear the feed, from an NGO – unhappy with targeted killings of American citizens, and wanting to know, among other things, whether an American citizen would have the right to contest the evidence against him in a court.  I raise this because Dean Koh’s response was being directed to someone who had strong views, apparently, that the practice, particularly against Americans (who, in the view of the US government, had made themselves liable to attack by joining with groups in hostilities with the United States), was unlawful.  The nuance, in other words, might have been different had it been someone, wanting to know why the State Department wasn’t out in front defending targeted killing as a practice.

Dean Koh’s response was interesting, in that he noted that he had served in both Republican and Democratic administrations, and as a human rights lawyer had sued both Republican and Democratic administrations.  He added that he already a permanent job, and so in effect (I paraphrase) he wasn’t beholden to anyone in formulating his legal views.  He went on to say that he would leave the government if he concluded that targeted killing was illegal.  He did not say that he had concluded that it was legal, but instead that he would leave if he concluded that it was illegal and, (my) presumably, if that conclusion were not accepted by the administration.  Having said that, however, he added that he was still there.

This is a good place at which to caution against over-interpreting an impromptu discussion.  I would like to conclude that the upshot here is that not having left is not a reason to conclude that Dean Koh has concluded that the practice is affirmatively legal.  All he said was that if he were to conclude that the practice was illegal (and presumably that conclusion not accepted), he would leave office.  It would appear either that he has concluded the practice is legal or that he has not drawn a conclusion as yet.  (And of course, targeted killing is too broad a description; under what circumstances and what exactly is meant?)  But I do not think it is fair in this setting to draw firm conclusions.

On the other hand, I do think the question important enough that the legal adviser does need to draw some formal conclusions and put them out there, preferably in testimony.  What was said here suggests that the legal adviser to State might still draw the conclusion that targeted killing is unlawful.  If I were the administration, ever more committed by the President, the Vice-President, and down the chain of policy and command, to targeted killing especially via drone aircraft – embracing it as a strategy and publicly endorsing it – I’d be concerned that my chief international lawyer had so far reserved judgment on the question.  I have written in various places that I think Republicans in Congress need to press the State Department for its formal views on this – actually, I think the people who have the most reason to be concerned should be the administration itself.

That would include, I should think, particularly officials and officers in the CIA and civilian intelligence agencies responsible for parts of the drone program outside of the uniformed military – while it would be unfair to say what Dean Koh’s view of their actions would be in the future, surely a senior CIA official would have some concern that after a year, the DOS had not affirmatively embraced in public the lawfulness of the practice or produced a public legal rationale for its lawfulness.  I am no fan of the ACLU on these matters, and I agree with the US government, under both Obama and Bush, that the UN special rapporteur exceeds his mandate to call upon the US government to respond – but as to the substance, I think the ACLU and Philip Alston are both quite right in saying that, yes, the US government needs to state the basis on which it thinks its several varieties of targeted killing programs (those in AfPak, those elsewhere, for example) are lawful.  I think it needs to say so and assert it as formal opinio juris of the United States.  The failure to do so and the increasingly conspicuous absence of the administration’s most senior, and most widely admired, lawyer on public international law and human rights to defend the practice cannot be a good thing.  At what point does the State Department legal department have to express a view, stand with its clients or, as Dean Koh says, stand down?

Again, while it is wrong to over-interpret here, were I a senior CIA or NSC official with operational responsibilities for Predator attacks, I would wonder what exactly to make of the failure of the State Department’s lawyers to step up and defend what I’m doing – and instead to raise the possibility that no conclusion had actually been reached.  Would I think my personal legal risks had just been increased – risks of investigation or prosecution five years from now, ten years from now, in some European court?  Or by a future Holderesque Justice Department?

Far fetched?  Maybe.  But I think I would be saying to myself, hmm … my colleagues and I are out there killing people, and causing some number of collateral deaths, and the President says approvingly in speech after speech, we’re taking the fight to the enemy wherever they are.  And the Vice-President, well, it’s as though he’s beaming with pride over his flock of Predator gooselings … meanwhile, however, the administration’s lawyer whose public approval, in that world of combined law-diplomacy-global elite opinion matters most to the personal legal protection of the officials tasked with carrying out the President’s policies … does not seem to have drawn a conclusion.  At least not one he’s willing to share with the rest of us, and with Baltasar Garzon or Luis Moreno Ocampo.  So my own conclusion is – you can’t extract a firm conclusion as to Dean Koh’s views one way or the other.  But there are compelling reasons why it shouldn’t – can’t – go on forever that the State Department expresses no view in public, and gets behind that view in public legal-diplomacy.  If I were the general counsel to the CIA, DNI, DOD, the White House counsel, etc., I think I would have some concerns – and that would be so even if private assurances had been given.

But Dean Koh also made some references as to the legal basis for global counter terror operations generally – and referred to them in the context of the domestic authorization to use force from Congress, the AUMF, and then the international law of armed conflict.  I have argued in various contexts, and will argue some more, that as a matter of international law, targeted killing – to the extent and in the places and against the targets that the administration has undertaken, has committed itself to undertaking, and is likely to be forced by circumstance to contemplate over two terms in office, nearly a decade – cannot really be justified as armed conflict with a non-state actor on a global basis, governed by the laws of war alone.  I don’t think that’s true as a matter of jus ad bellum or jus in bello.

I will be arguing (in a new paper soon) that unless the Obama administration plans to backtrack and adopt the Bush administration’s “global” war on terror as a basis for asserting the laws of armed conflict however and wherever it uses force – all of which I consider to be several bridges too far and the one area where I agree with Mary Ellen O’Connell – it’s not really talking about armed conflict.  Not in a legal sense.  Not seven years from now, when it sends a miniaturized Predator missile to take out three terrorists who are in some compound in, say, a remote part of, oh, Nigeria in which the central government, caught in civil war, no longer has sway – part of a group that swears allegiance to jihad but has no command or control link to Osama bin Laden.  The legal doctrine the US wants, in that case, is not armed conflict, but the more general category of international law of self-defense.  I am somewhat concerned that the Legal Adviser made no reference to legal rationales for the use of force beyond the narrowest armed conflict law – law which might serve the administration for the next couple of years, but seems more and more like a purely formal, purely notional reference to armed conflict or, for that matter, Al Qaeda or 9-11, as the years roll by.  It seems to me that the law at issue here is the more general category of international law of self-defense, and that the US government does itself no good and much harm in the long term by not asserting the legal category that most accurately describes the uses of force that, over the next decade, it contemplates actually undertaking.

That’s my own legal view, of course, and it will be important to watch as the State Department expresses its positions on these and other issues.  The discussion covered many other aspects of the Obama administration’s approach to international law, although I have focused closely on this one aspect.  It was an outstanding event, and my thanks and congratulations to the organizers and participants – I wish I could have been there.  I hope many people will take time to view the video.

(I have over at my almost-entirely dormant home blog a much more aggressive – too incendiary for Opinio Juris, I concluded – discussion of this, posted up prior to the ASIL discussion.  Instapundit picked it up, so it has circulated pretty widely, so I thought I should reference it here.  In large part, though, it is a highly critical comparison of the administration’s “on offense” and “on defense” approaches to counterterrorism.)


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