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