What Harry Told Barry



It's Academic and Far, Far Away



State Department head attorney Harold Koh has been universally lauded as a champion of human rights. He is widely reported to be on President Obama's short list of future Supreme Court nominees, precisely because of his stellar record as a trans-global, humanistic legal scholar and public servant in both Republican (Reagan) and Democratic administrations. The son of first-generation immigrants from South Korea, he would be the first Asian-American Supreme Court Justice and its only international law expert.  The former  dean of Yale Law School, he served as Assistant Secretary of State for Democracy, Human Rights and Labor under President Clinton and is currently Legal Adviser to the State Department.  Thus, he has had both Clintons as bosses. 

So it came as a  surprise last week when Mr. Koh, an erstwhile staunch defender of the War Powers Act,  performed a prima facie flip-flop on his interpretation of it. This came after the President had already been advised by two other lawyers in the Departments of Defense and Justice that he needed congressional approval to keep bombing Libya.  But war is not war, according to Koh's conveniently convoluted thinking, when we destroy just a few buildings and people with remote control gizmos.

 He told the president exactly what he wanted to hear, much in the same way George Bush's lawyers told him what he wanted to hear about torture.  It's easy.  All you have to do is mangle the English language. Torture becomes an enhanced interrogation technique.  War becomes a limited kinetic military exercise when you perform surgical strikes with drones and minimal collateral damage.  If these weapons do happen to kill some innocent women and children along the way, it's because of system failure, not human aggression.  Or so the reasoning goes.  It's kind of like a video game, because from a distance, you don't have to deal with even looking at any blood or mangled bodies.  You are at so many degrees of separation.  You can physically be thousands of miles away. Plus, if no American is in imminent danger of bodily harm, the grudgingly acknowledged and always regrettable deaths of civilians simply don't count.  War is war only if someone on our side gets hurt. It has to be a mutual thing.

Since Koh had always been such a defender of the War Powers Act, why has he now seemingly gone out of his way to subvert it through semantics? 


"One possibility is that Koh has a client, the Secretary of State, who is committed to the Libya intervention, and he is serving his client faithfully" writes former  DOJ and DOD lawyer Jack Goldsmith of Harvard University. "Another possibility is that Koh’s commitments to humanitarian intervention and the 'responsibility to protect' outweigh his commitment to his academic vision of presidential war powers.  I certainly do not believe that Koh’s academic views should control his advice and judgment during his government service.  Nor do I think that his academic writings addressed the precise issue under the WPR that he is now advocating in the government.  But for a quarter century before heading up State-L, Koh was the leading and most vocal academic critic of presidential unilateralism in war, and a tireless advocate for institutional cooperation between the political branches in war decisions.  I am thus genuinely surprised, as many people are, by his current stance."


Goldsmith added that "it cannot be pleasant for the men and women involved in this 'kinetic military action' to know that the Defense Department General Counsel and the head of OLC think the intervention in Libya as currently executed is unlawful."


In his capacity as State Department legal advisor, Koh was also instrumental in  writing new international rules governing the behavior of private security contractors in the wake of the Blackwater (now XE) scandal involving the shooting of civilians in Iraq. Of course, the new code of behavior does not include sanctions for previous bad behavior.  It's another one of those aspirational things, apparently, with the purpose of placating the international human rights community.

And then there is that bane of the Administration and of the American Security State, Wikileaks founder Julian Assange, subject of an ongoing DOJ investigation for possible violation of the Espionage Act.  Last December, Lawyers Rights Watch Canada, a advocacy group which has an advisory role at the U.N., accused the ubiquitous Mr. Koh of violating ethical standards and putting British barrister Jennifer Robinson in jeopardy by interfering with her representation of her client. Koh had posted a letter online conflating her legal work for Assange with criminality on her own part. (Shades of the Bush Administration's criticism of lawyers defending Gitmo detainees?)  Koh's actions, according to the Canadians, violated both international law and the ethical standards of the American Bar Association.  Details can be found here. LRWC filed a complaint about Koh with Attorney General Eric Holder and Sec. Clinton.  But since Koh not only still has his Foggy Bottom job, but is also now a go-to legal eagle for the White House, we can safely assume the letter was stuffed in a circular file somewhere, eh? 

Koh is a new breed of apparatchik, a tool of the neoliberals who wage war that is not war with a wink and a nod and a path to riches in an oil-rich state that is conveniently not too dedicated to human rights.



It's Collateral Damage and Far, Far Away



Update: Here's a list made by Rep. Dennis Kucinich of 10 reasons to oppose the war in Libya.