Eric Posner Calls Out Harold Koh on the Legality of Drone Strikes Under International Law

by Julian Ku

In his latest Slate article,  Professor Eric Posner highlights (for non-specialist readers) the  questionable international legal foundation of the Obama Administration’s “drone war on terror” in Pakistan, Yemen, and elsewhere (e.g. Libya). The whole idea that the U.S. can infer Pakistan’s consent to the strikes due to Pakistan’s refusal to object to CIA faxes is not terribly persuasive.  I am more attracted to the “unwilling or unable” theory of the drone strikes, but I recognize it is far from flawless either.

Posner goes on to question whether international law can ever really regulate the U.S. government’s use of force, and suggests that Harold Koh may now realize it is a weak constraint at best.

But don’t blame government lawyers like Koh for devising this theory. International law lacks the resources for constraining the U.S. government. Koh knows this now if he did not before. Since he built his academic career on the claim that international law can and should be used to control nation-states and harshly criticized the Bush administration for violating international law, this must have been a bitter pill to swallow. (Though he has swallowed so many bitter pills that perhaps he has lost his sense of taste: The man who told the Senate at the end of the Bush administration that the United States must “unambiguously reassert our historic commitments to human rights and the rule of law as a major source of our moral authority” has backed away from his earlier opposition to expansive war powers, targeted killing, military commissions, and military detention.)

Posner’s general take on these questions can be found in his book, The Perils of Global Legalism.  In it, he argues that most international law doesn’t affect state behavior very much (if at all) and actions by government officials based on the assumption that international law does restrain state behavior is both naive and dangerous.

I am not sure if I completely agree with Posner here, although I concede he can certainly marshal lots of evidence in the use-of-force area.  But I think his focus on Koh’s “conversion” or “awakening” to the limits of international law is interesting.  If we get a President Romney (which looks somewhat more likely than it did just a week ago), we can expect to hear his legal advisers citing Koh on a variety of legal questions  (“Even the liberal transnationalist Harold Koh thinks a drone strike/cyberwarfare retaliation/Guantanamo is legal…”).  The interesting question is whether Koh’s endorsement of the legality of such policies will serve as a shield from international law critics like NGOs, academics, etc.  I doubt it, but it is always worth a try.

Will CEDAW Bring A “Radical Transformation of American Law”?

by Julian Ku

I don’t know a lot about CEDAW, the Convention for the Elimination of Discrimination Against Women, but I know that lots of groups on both sides think the treaty is really important. For instance, in this post, a critic of CEDAW quotes a proponent of CEDAW, Janet Benshoof,  for the view that:

“[W]ere the United States (US) to ratify CEDAW, it would bring about a “radical transformation of American law,” which would include overturning any abortion restrictions in domestic laws or those covering foreign activities. Further, Benshoof asserted that CEDAW doesn’t allow for any defense based on custom or religion, and that it applies to all private conduct.

I guess my (admittedly not expert) reading doesn’t see where the big transformation is.  Not to mention the treaty is almost certainly non-self-executing.  But this debate may eventually come back to us when (or if) the Obama Administration makes a final push for CEDAW (although that will probably not be until Obama’s second term, if there is a second term).

The Obama Administration’s Overblown Internal Debate Over War on Terrorism Policy

by Julian Ku

Fascinating inside baseball piece on the Obama Administration’s internal debate over war on terrorism policy. It features a struggle between the State Department (Harold Koh) and the Defense Department (Jeh Johnson) with the OLC (David Barron) playing referee.

The rift has been most pronounced between top lawyers in the State Department and the Pentagon, though it has also involved conflicts among career Justice Department lawyers and political appointees throughout the national security agencies.

The discussions, which shaped classified court briefs filed this month, have centered on how broadly to define the types of terrorism suspects who may be detained without trials as wartime prisoners. The outcome of the yearlong debate could reverberate through national security policies, ranging from the number of people the United States ultimately detains to decisions about who may be lawfully selected for killing using drones.

I actually think the article overstates the differences somewhat.  All the key players agree there is a war against Al Qaeda and that there is a power to detain and try Al Qaeda folks. The only question  dividing them seems to be how to define a member of Al Qaeda, or supporter of Al Qaeda.  Admittedly, this is a difficult question but it doesn’t seem to be a deep philosophical divide.

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.

The “Obama-Clinton” Policy on Treaty Submissions

by Julian Ku

One small followup on Sarah Cleveland’s articulation of an “Obama-Clinton” approach to international law. In her UVA address, she notes that more treaties have been deposited and ratified in the past year than in any other year in U.S. history.  This is no doubt true, but it is odd that she (or the Obama-Clinton Administration) would take credit for it.  After all, these treaties were all submitted by that guy who was in the presidency before Obama (what was his name?) and his State Department.

In fact, the Obama Administration has been pretty slow to submit treaties to the Senate.  Granted, it’s only been one year and the Koh-Cleveland regime has only been in office since September.  But it is worth noting that they’ve only submitted three treaties to the Senate so far and all of them were protocols to existing and largely unimportant treaties.   Granted, every first year of an administration is slow. But there is no reason to think this administration is particularly fast.

I should also add that for all the concerns raised about the “radical transnationalist” Harold Koh, there is little evidence of this so far, or in the articulation of his approach to international law voiced by Sarah Cleveland.

Sarah Cleveland Defends the “Obama-Clinton” Approach to International Law

by Julian Ku

I had the good fortune of participating in a symposium last week sponsored by the University of Virginia Law School’s John Bassett Moore Society.  Entitled “The Obama Impact”, the symposium explored the impact of the new administration on international law and policy.  I have already shared my views on this subject here and I took the opportunity during my visit to rebut the United Nations’ claim to “indispensability.”  But the main action at the symposium was the keynote address by Sarah Cleveland, Counselor on International Law in the U.S. State Department’s Office of the Legal Adviser.  Cleveland, who is also a Columbia Law School professor, offered one of the most forthright and clear explanations of the new administration’s approach to international law.  A summary can be found here, along with a recording of her address.  But below is a key excerpt:

“I would say that the administration has articulated an Obama-Clinton doctrine, a vision that reflects commitments to four elements,” Cleveland said. “The first is multilateral engagement. This was a consistent theme of the president’s campaign and has been a consistent theme of his first year in office.”

Other elements of the doctrine are universality, or the idea that all men are created equal, and the legitimating force of law, which suggests that law gives strength and legitimacy to government action.

“Finally, these goals are to be achieved through a principled pragmatism and the exercise of smart power: the intelligent use of all means to our disposal, including diplomacy, promotion of democracy, development and human rights,” Cleveland said.

Cleveland’s framework is interesting, but I’ll note simply that few of the things she describes are substantially different from things that Condi Rice and John Bellinger would have said.  The devil is in the details, and so far there is not as much a difference as some of the campaign rhetoric suggested.  (Not that this is a bad thing).
UPDATE: Her boss, Harold Koh, shared a few thoughts with John Bellinger today as well.

Koh Update: Cloture Motion Passes [UPDATED]

by Chris Borgen

Foreign Policy.com reports:

“Cloture passed on a 65-31 vote,” a Congressional source relays at 11:30am. “There was applause in the Senate gallery after the vote was announced. Republicans are threatening to exercise their right to use all 30 hours of floor debate before permitting a final vote, so Koh may not be formally confirmed until tomorrow.”

See also IntLawGrrls.  Yesterday, by the way, Senator Lugar issued a statement supporting Koh’s confirmation.

It remains to be seen whether the 30 hours of floor debate will be used or not.

UPDATE:

Here’s the breakdown of the vote and various statistical charts.

Hat Tips: Stephanie Farrior (Vermont Law School) and Catherine Powell (Fordham Law School)

Legal Adviser Nominee Harold Koh Should Be Confirmed

by Laura Dickinson

[ Laura Dickinson is the Foundation Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.]

After three months of unwarranted delay, the cloture vote on State Department Legal Adviser nominee Dean Harold Hongju Koh is finally scheduled for tomorrow. (See Chris Borgen’s post, here.) Predictably, critics on the right are gearing up with robocalls and email campaigns aimed at painting Dean Koh as an extremist who wants to subvert American democracy through so-called “transnationalism.”

But as I have blogged previously (and Hari Osofsky did earlier today at IntLawGrrls), nothing in Dean Koh’s background or views supports any such accusation. To the contrary, Koh’s views are firmly within mainstream legal thought. Koh, currently the Dean and the Gerard C. and Bernice Latrobe Smith Professor at Yale Law School, is one of the nation’s leading lawyers and scholars, and he has served with distinction in both Republican and Democratic administrations, first in the Office of Legal Counsel during the presidency of Ronald Reagan and second as the Assistant Secretary of State for Democracy, Human Rights, and Labor under President Bill Clinton – a position in which, having been confirmed unanimously by the U.S. Senate, he received praise from Democrats and Republicans alike. He clerked for two judges appointed by Republican Presidents, Judge Malcolm Richard Wilkey of the U.S. Court of Appeals for the D.C. Circuit and Justice Harry A. Blackmun of the U.S. Supreme Court. He has argued before the U.S. Supreme Court and testified in Congress more than thirty times. And he has authored or co-authored eight books and more than 150 articles, has won more than thirty awards for his litigation, and has earned two life-time achievement awards (from the American Bar Association and Columbia Law School) before reaching the age of 45. Moreover, he has sued both democratic and republican administrations — and has advanced the cause of Cuban refugees fleeing Fidel Castro’s regime. Conservative students and Federalist Society members from Yale Law School support his candidacy.

Fair-minded Senators should flatly reject right-wing attempts to raise the red herring of transnationalism to scuttle Koh’s confirmation… [Continue reading after the jump]

Remember Harold Koh? Full Senate Expected to Vote on His Nomination on Wednesday

by Chris Borgen

Well, it’s about time. 

On Monday, Senator Harry Reid moved for cloture of debate on the nomination of Harold Koh to be the State Department’s legal adviser. (Be sure to check out this article.) Sixty votes will be needed for cloture and then fifty votes for his confirmation. Both votes are expected to come this Wednesday, assuming no further shenanigans.

Three months ago, the legal blogosphere was abuzz with posts concerning Koh’s nomination to be the top lawyer at the State Department. For most, the nomination was a no-brainer: an influential international legal scholar and the Dean of Yale Law School, he had already served in government in the Reagan and Clinton administrations, most recently as Assistant Secretary of State for Democracy, Human Rights and Labor.

But then various pundits decided to caricature and demonize him. In the days and weeks to followed, there was a robust airing of his views and, I think, a debunking of the misconceptions promulgated by some.

Koh testified before the Senate Foreign Relations Committee almost two months ago, had submitted written answers to the Senate before that, was subject to a public debate via the blogosphere and op-ed pages (see, for example, the Opinio Juris posts here, and IntLawGrrl posts here, each of which reference posts from other sites), received endorsements from a who’s who of legal scholars and practicing attorneys, including former Solicitor General Theodore Olson, former Judge Ken Starr, former Bush Chief of Staff Josh Bolten, seven former State Department legal advisers and 103 law school deans (to name a few), and was succesfully voted out of the Senate Foreign Relations Committee by a 12-5 vote, including the support of the committee’s leadership, Senators Kerry and Lugar. 

Nonetheless,  Senators Vitter and Cornyn put a procedural hold on the full-Senate vote needed for his confirmation. This seemed to be less about the need to further explore Koh’s views, which by this point had received more scrutiny than any nominee for the post of Legal Adviser had ever had, and more just an attempt to play procedural “Gotcha!”

OK, partisan politics can be fun, but with unrest in Iran, North Korea acting even weirder than usual, and pressing issues in Afghanistan and Iraq (to name a few current concerns), wouldn’t it be a good idea to move forward on the nomination of the State Department’s top lawyer? The vote for cloture may be contentious. It should not be.  Koh has been thoroughly vetted. It is time to set aside partisan politics, vote on Harold Koh’s nomination, and confirm him.

Posts on Koh Confirmation Hearing at Intlaw Grrls

by Chris Borgen

In case you haven’t seen them already, I wanted to point out that Beth Van Schaack and Hari Osofsky have a couple of posts at IntLawGrrls on yesterday’s Koh confirmation hearing.

Defending Harold Koh

by Duncan Hollis

Chris Borgen and I have an op-ed in today’s Philadelphia Inquirer — you can access it here — defending Yale Law School Dean Harold Koh’s nomination to serve as the Legal Adviser to Secretary of State Hillary Clinton.  Our inspiration for writing it was Rick Santorum’s recent column, which suggested Harold Koh was un-American, and launched a general attack on international law having any role in U.S. law or foreign law serving as any source of interpretative authority within the U.S. legal system.  Our op-ed suggests that whatever roots isolationism may have as an American tradition, Koh’s critics have painted an inaccurate and incomplete portrait of Koh’s positions, and, in doing so, ignored a distinct American tradition of international engagement with both international and foreign law.

Meanwhile, the Senate Foreign Relations Committee is scheduled to take up Dean Koh’s nomination tomorrow at 2:15.

Slye on Koh

by Peggy McGuinness

Professor Ron Slye has a helpful defense of the Koh nomination up at Foreign Policy.  His post includes this very useful description of “transnational legal process” noting, importantly, that TLP is a descriptive theory of how law crosses borders.  Somehow this fact has eluded much of the MSM discussion:

All transnationalism does, in a nutshell, is work to describe and understand how law develops in a globalizing world. It is not prescriptive, purporting to say how international law and domestic law, or public and private law, should interact; nor does it attempt to answer whether the United States should adopt or reject a particular rule of international law. Instead, it challenges the descriptive power of international law’s traditional dichotomies, between public and private, and domestic and foreign law. It recognizes that states are not the only actors in international law — that organizations such as the United Nations, for instance, play a vital role. It also examines how international actors interpret, internalize, and enforce laws.

This is hardly a radical approach — in fact it is solidly within the mainstream of academic legal scholarship, legal practice, and U.S. constitutional law. Everyone from corporate lawyers to International Criminal Court prosecutors recognize the dynamic relationships between domestic and international law. And the vast majority of international law scholarship, whether “liberal” or “conservative,” concerns the proper relationship between international and domestic law. No one questions that international law exists or matters.

Additionally, the power to create and enforce laws now lies outside capital courtrooms — and thus requires a transnationalist approach. The World Trade Organization ensures a level playing field for international trade; the World Intellectual Property Organization protects patents globally; and U.N. Security Council resolutions impose financial sanctions on states. The State Department needs a counselor who understands all such global actors.