Where Koh’s Testimony Went Wrong

I’m a big fan of Harold Koh, who was one of my professors in law school, because he serves as a great role model for all law students interested in international law, government service, and legal academia. That said, I find one important element of his critique very unconvincing.

Let me put aside his arguments about whether the controversial August 1, 2002 OLC memo defined torture too narrowly and whether the Geneva Conventions applied in Afghanistan. The first is an extremely difficult question for which little authority exists in the form of, say, caselaw. It has also been the subject of an interesting debate between Heather Macdonald and Marty Lederman. (I judge Lederman the winner in a split decision, but I think they are both wrong and that Stuart Taylor has the best take on all of this, as usual.). The second question seems pretty unimportant because Koh agrees that Al Qaeda terrorists do not receive POW status under the Geneva Convention and the President has agreed to treat all detainees humanely whether or not they are POWs.

Even if Koh is right on his two other criticisms of Gonzales (which I doubt), he plainly overreached in his rejection of the so-called “commander in chief” argument.

The idea that there is some sphere of executive commander in chief authority that is constitutionally protected from congressional powers is hardly radical in the way that Koh suggests. Walter Dellinger, Clinton’s OLC chief and well-known law professor, wielded this argument to dissuade Congress from attempting to legislate prohibitions on U.S. cooperation with international organizations.

It is for the President alone, as Commander-in-Chief, to make the choice of the particular personnel who are to exercise operational and tactical command functions over the U.S. Armed Forces. True, Congress has the power to lay down general rules . . . but such framework rules may not unduly constrain or inhibit the President’s authority to make and to implement the decisions that he deems necessary or advisable for the successful conduct of military missions in the field, including the choice of particular persons to perform specific command functions in those missions. (emphasis added)

Koh further slams the OLC memo’s “stunning failure of lawyerly craft” because it did not cite the landmark case of Youngstown Steel & Tube Co. v. Sawyer, which Koh says “spelled out clear limits on the President’s constitutional powers.” Failures of “lawyerly craft” seems endemic at the OLC, because Dellinger’s Clinton-era OLC memo also mysteriously failed to cite Youngstown. And for good reason. Youngstown may be a great and even sensible case, but it can hardly be read to “spell out clear limits” when the key concurrence describes the President’s powers as “not fixed, but fluctuat[ing]” and where the President’s power to act against the will of Congress is not prohibited, but is simply “at its lowest ebb.”

I may be nitpicking. But this is an important constitutional principle that is quite different and separate from the battles over the Torture Convention and the Geneva Conventions. And it deserves better analysis than Koh and other critics have provided here.