If Harold Koh Says It, It Must Be True: The U.S. Is At War with Al Qaeda

by Julian Ku

The full text of U.S. State Department Legal Adviser Harold Koh’s speech at ASIL can be found here.  Ken has already praised it, Kevin (along with Marko Milanovic) have rejected it, and others are staying neutral or reserving judgment.

Here is what I took away from the speech:  The Obama Administration has now embraced the Bush Administration’s position that the U.S. is engaged in an armed conflict with “a nonstate actor, Al Qaeda (as well as the Taliban forces that harbored al Qaeda).”  The rest of the legal analysis flows from this basic commitment.  Hence, military detention during the conflict is permitted (it turns out, Guantanamo, and even Bagram, are perfectly legal).  Targeted killings outside of Afghanistan and Iraq are also legal.  Military commissions are an option for Al Qaeda detainees (but not required, of course).

In other words, the basic legal framework of the Bush Administration’s “war on terrorism” has been adopted and maintained by the Obama Administration. Of course, we all knew that, but it is nice to hear someone like Koh confirm this publicly.  Ed Whelan and Liz Cheney, you can stop worrying now!

I predict there will be some grumbling but Koh’s stature and credibility with the NGO and international law community will pretty much end the legal debate here in the U.S. about whether we are at “war” (of course, I wasn’t there last night so maybe other folks who attended have a different view).  And, frankly, the political inclinations of many folks (but not Kevin!) will give Koh, Clinton, and Obama much more deference than they gave Bellinger, Rice, and Bush.  Overseas, this is going to remain somewhat controversial. That’s another matter, but luckily for Koh and other administration officials, Baltasar Garzon has his own legal problems these days.


8 Responses

  1. Oh boy, another post from Julian about the supposed equivalency between Bush and Obama. Look, I’ve no doubt there are real issues of substance to discuss in such a comparison, including ones which may ensnare and embarrass some Bush critics and Obama defenders. However, it’s hard to see this post as a bona fide attempt to dispassionately unpack these issues due to the incredibly smug tone and huge brush strokes being used.

    The obvious bait-and-switch that is going on here is that Julian only compares Bush with Obama using the late-term, highly circumscribed state of the Bush approach to the war on terror. That is, after the Administration’s policies were heavily revised as a result of losing a sequence of battles at the OLC, Justice and the Supreme Court, as well as in terms of public opinion.

    The early Bush record of outlier policies in the war on terror, which is dominated by executive overreach, is conveniently discarded out of sight when Julian tries to draw a circle of reasonableness around “the basic legal framework” of the Bush Administration.

    That means all that pesky criticism which centred around fundamental issues such as the applicability of the UN Charter collective security regime, the use of torture: specifically waterboarding, the non-legislative basis for military commissions, the inadequacy of the CSR Tribunal structure, the applicability of CA3 as an IHL floor for terror suspects, human rights law vs lex specialis, or extra-FISA warrantless wiretapping, the absurdity of Guantanamo’s status as a legal black hole etc., those are just trivial matters apparently. They ‘certainly’ don’t deserve to fall under the mantel of “the Bush approach”, or identified as the specific locus of much of the legal criticism received by the Administration.

    Indeed, under this account, the curative role played by this criticism is accepted so readily that it is almost as if the Bush Administration never had a differing original approach before the roll-backs took place. Well done Julian, for this impressive sleight of hand! After all, it makes so much sense to view the roll played by the courts, OLC and Justice lawyers, public opinion, and cooler minds in the Administration – who all played a significant role in pushing back against the reigning ascendency of Cheney, Yoo, Addington et al – as part and parcel of the basic legal approach of the Bush Administration.

    Of course, Julian doesn’t even consider the fact that  Obama’s ideal war on terror legal framework might be significantly different if he wasn’t in the position of succeeding Bush.

  2. Will,

    I agree that late Bush was considerably less awful than early Bush — but late Bush was still awful, and Obama deserves nothing but criticism for adopting the same approach.  The US attitude toward targeted killings is not acceptable simply because it could be much worse.

  3. Will,

    I also think your list is somewhat revealing.  Of the Bush excesses that you mention — and they were indeed excesses — how many of them have been completely repudiated by Obama?  I don’t see any differences in terms of the UN collective-security regime, lex specialis/human rights, or warrantless wiretapping.  Yes, Obama prohibited waterboarding — but he refuses to investigate it, thus putting the US in breach of CAT.  Yes, Obama wants statutory authority for the military commissions — but the problem is not who authorizes them, but their lack of due process and the fact they have jurisdiction over crimes that don’t exist under international law.  Yes, Obama rejects that Gitmo is a black hole — but he wants Bagram to be a new one.  So how, exactly, is Obama so much better, other than his ability to give much prettier speeches?

  4. Koh’s speech was entirely predictable.

    Kagan, Holder and Obama himself have firmly declared on earlier occassions that the U.S. is ‘at war’ with Al Qaeda, so Koh’s reiteration of this position is not really a surprise.

    However, it looks to me that this administration is not really THAT convinced that they are actually fighting a ‘war’ against Al Qaeda (see for instance Holder’s and Obama’s statements on the civilian trial of KSM, the christmas day’s bombers Miranda rights controversy etc.), but when the war-logic of the previous administration comes in handy (no habeas for Bagram detainees, legally defending drones etc..) they’re happy to have this option to defend their policy choices.  It’s really a pick-and-choose version of the ‘war’ on terror, compared to the all-encompassing ideology of a Cheney for instance.

  5. When the Supreme Court ruled in June 2004 that Yasir Hamdi, and American citizen, could be detained as an enemy combatant under the laws of war and the AUMF, the necessarily logical consequence of that ruling is that the US was engaged in a real armed conflict. When they expressed concern about indefinite detention, they admitted that conflict would go on for a long time. The President, Congress, and the Court have all consistently stated that this is a real armed conflict. Now Harold Koh says the same thing and suddenly for the first time some people finally listen to the words.

  6. I agree with Howard on the tremendous importance of Hamdi to this discussion from the perspective of U.S. law.  Of course, both Hamdi and Hamdan dealt with individuals captured on the battlefields of Afghanistan.  We still lack complete judicial endorsement of the global conflict model to which Kevin, Marko and others vehemently object.  Folks like Ken Anderson seek to avoid reliance on it in an apparent (but ultimately unsuccessful) attempt to appease those supporting the broad applicability of international human rights instruments or customary norms.  I find Ken’s argument slightly more problematic, both legally and politically, than the global conflict model.  In some ways, though, it may better reflect the actual practice of at least some states.

    The fundamental difference between the Bush and Obama administrations is, of course, the Bush administrations’ broad assertions of independent/plenary Article II authority and its near complete rejection of the import of both domestic and international law.  My current article (available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1539257) explains how wrongheaded the Bush approach was as a matter of over 200 years of Supreme Court precedent.  It also indirectly addresses, in terms of the politics of national security and the separation of powers, how such executive indiscretion occurs in our constitutional framework.  My current research, while outlining the broader legal framework of armed conflict in U.S. law, will explain the theoretical origins of U.S. thought on the applicability of human rights in armed conflict.

    Apart from the historical U.S. view, my suspicion is that a true empirical (both qualitative and quantitative) analysis of state practice in armed conflict would yield scant data supporting the extraterritorial applicability of most human rights law (meaning other than crimes against humanity) or its broad applicability in even internal armed conflict.  If that is historically true or at least debatable, then in my humble opinion the burden is not on the Obama administration to demonstrate the indisputable propriety of  its legal framework.  The burden is on those challenging it to demonstrate precisely the way in which it does not comport with settled international law.  It seems to me that no balanced analysis of these issues can do so.

  7. I have to agree with the previous two commentors.  Little in Mr Koh’s speech could not have been deduced from past statements from an Administration that may have toned down the ‘Global War on Terror’ rhetoric, but has nonetheless never denied that an armed conflict exists between the United States, Al-Qaeda and related terrorist groups.  

    As noted by Mr Dehn, the shift from sole Article II exective detention authority to an emphasis on the authority derived from Congressional authorization cannot be dismissed (though it is true that the Bush administration moved towards a similar rationale during its second term).  Hamdi stands regardless of which rationale the Administration adopts.  I for one rather like the idea that the Obama Administration recognizes that Congress may have a role to play in regulating long term detention policy, other than when the Supreme Court strikes down execitive policy.

    Domestic rationales aside, what really interested me about the speech were the questions it begged.  Namely, what does international humanitarian law have to say about detention during a Common Article 3 armed conflict (which the Hamdan court and the current administration concede that we are in)?  The text doesn’t provide much guidance, that is if the ongoing habeas proceedings are any indication.  I too would be fascinated to see what a rigorous analysis of actual state practice indicates, but I’m not optimistic that anything approaching consensus would be discoverable.  I find that, much as I disagree with significant aspects of the Al-Bihani holding, it really has identified an area where policy has raced out ahead, leaving the law to catch up.  I’d like to think that the corollary of Mr Koh’s speech is that the Obama Administration will head up an effort to revise or clarify Common Article 3, I’m not going to hold my breath however. 

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  1. […]  In the academic blogosphere, reaction was not so enthused — although my Opinio Juris colleague Julian Ku was pleased that the Koh speech embraced the Bush rationale of armed conflict in addressing Al Qaeda terrorism, […]