Harold Koh’s Speech at the Oxford Union

by Chris Borgen

Former State Department Legal Adviser Harold Koh spoke yesterday at the Oxford Union. His speech, “How to End the Forever War?” (link to .pdf) is a reflection on the Obama Administration’s  foreign policy, in particular in regards to the rule of law.  It is also a talk set to contrast the Obama Administration’s approach to international law and foreign policy from the Bush Administration’s. He opens in this way:

Now that I have returned to the academy, I tend to hear three common misperceptions from friends on both the left and the right: first, that what some call the Global War on Terror has become a perpetual state of affairs; second, that “the Obama approach to that conflict has become just like the Bush approach;” and third, that we have no available strategy to bring this conflict to an end in the near future. Tonight, let me reject all three propositions.

Let me ask what the real question is that faces us, suggest the right approach to addressing it, and outline three elements of an answer. In a nutshell, our question should be: “How to End the Forever War?” Our Approach should be what I would call: “Translate, not Black Hole.” And our three-part answer should be: “(1) Disengage from Afghanistan, (2) Close Guantanamo, and (3) Discipline Drones.”

This speech is a sort of book-end with former Department of Defense General Counsel Jeh Johnson’s recent speech (also at the Oxford Union) that mentioned there will come a time when we transition from looking at this as an armed conflict against an organized enemy to a counter-terrorism effort against individuals. Koh’s speech extends this theme, giving his perspectives on how to get to that tipping point. Well worth the read.


2 Responses

  1. i saw Koh speak at the Association of American Law Schools Annual Meeting in January 2013 where he was a subject of great adulation. I have read this speech as well as Jeh Johnson’s.  The anglophillia of these speeches at the Oxford Union as opposed to say a Kiwanis Club in a middle-American city whose families provide the soldiers that underpin and do the execution of the policy is – I hope – not lost on people who read them.
    I took Jeh Johnson to task for the revelatory Freudian slip of putting quotation marks around the words “armed conflict” as if he was at some level uneasy with that characterization of what is going on with Al-Qaeda, the Taliban and associated forces.  We turn now to Koh Who does not appear at to make that mistake.
    Koh does his same torture bad/drones ok is consistent riff that he did in January. But there is a common problem with that approach. He states the law that makes it all consistent, but there is a vacuum.
    With torture he could critique the legal analysis out of government, and most likely worked in government to clean up US policy – iit it in the face of massive torture in fact having occurred pursuant to the flawed policy he – like too many of our ambient political class – can not find in himself the capacity to insist on criminal prosecution of high level officials who created these crimes.
    On drones, he seems to buy the unable or unwilling as legal doctrine meme that is about by so many commentators. He should read Dawood Ahmed’s recent article deconstructing that up at ssrn or his piece in foreign policy on Can Pakistan Shoot Down US drones? Strong iconic for those trying to morph what I argue is merely a political doctrine into a legal doctrine.  He should engage on the targeting personality strikes vs signature strikes and the joins of criteria used for each. Greg Mcneal’s work on at least the targeting for personality strikvs raises serious issues as to “as applied” reality.
    Finally, wabseil absent is any sense of contrition by the current to ernment a out the enormity of the war in Iraq from its inception through it’s prosecution and its aftermath. Not even the kind of modest willingness to have compassion for the people there to whom we brought the war or compassion for the loss of our dead and wounded sent on a lie. 
    One senses the same rigid unwillingness to lose personal face or say something that could be criticized as causing America to lose face for the enormity we foisted on Iraq on false pretenses.
    The Emperor’s lack of clothing is obvious to the ordinary citizen. It would be nice if these chamberlains would put aside their ambition to be servitude of the state to speak plainly of the obvious as servitors of the source of that state sovereignty – the citizen.
    Seems always too much to ask of our leaders and their servitorss – hold the criminals at the highest level accountable in a court of law.

  2. But sooo sad to see nonsense perpetuated about a “war” or “armed conflict” with al Qaeda when such is simply not possible under (1) the  customary criteria for an insurgency under the laws of war, (2) article 1 of Geneva Protocol II’s criteria, or (3) even the claimed Tadic criteria as developed further in subsequent ICTY decisions.  see, e.g., http://ssrn.com/abstract=2165278   And so sad to see nonsense about a “tansnational” non-international armed conflict.

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