Sunday, April 8th, 2012
State Department legal adviser Harold Hongju Koh was savage during policy debates about aerial drones and other issues in the early days of the Obama White House. “It was, ‘Jane, you ignorant slut,’” recalls General James Cartwright, the former vice chairman of the Joint Chiefs of Staff, referring to Dan Aykroyd in the 1970s Saturday Night Live television-debate parodies.
“Everybody hated him,” says Cartwright, describing how Koh would rip into him and other people: “He would say, ‘Oh, you military guys, you’re just so stupid.’” Koh got so worked up during the meetings that he did not win people over, he just got them mad, and afterwards, recalls one of his friends, he would rant about what people had said. At the time, Koh described drone strikes as “extrajudicial killings,” says Cartwright, and even the most diplomatic interlocutors, such as a former U.N. legal counsel who tussled with Koh recently when he was on a panel in Washington, says he can be “a little bit impolite.”
Cartwright is less diplomatic: “Just as a personality — he’s annoying.”
At a certain point, though, Koh, the 57-year-old former dean of Yale Law School, stopped ranting and got to work; he became an ally for Cartwright and others who supported the covert program of aerial drones. In March 2010, one year after Koh became legal adviser, he gave a speech at an American Society of International Law (ASIL) conference in Washington, defending the official process of placing people on a death list and explaining that the procedures are “extremely robust.” For nearly two years, Koh was the only administration official who spoke on the record — in public forums — about the legal basis for the program.
Earlier this year, Jeh Johnson, the Pentagon's general counsel, and Attorney General Eric Holder Jr. both spoke about the strikes, with Holder saying Americans had the right to target someone who posed “an imminent threat of violent attack.” Overall, however, Koh remains the only official to speak consistently about the targeted-warfare program; he blogged about the killing of Osama bin Laden, for example, and at the Holocaust Memorial Museum in Washington and other venues, he has defended the drone strikes, a startling turn of events for a man who had previously condemned these kinds of attacks and moreover seemed to embody the highest principles of international law.
“Why did he get involved? It’s quite inconsistent with his general work before. Koh’s claim to fame as a law professor has to do with the notion that the way international law and human rights become effective is through internalization in people like the legal advisor at the State Department,” says Bruce Ackerman, a Yale law professor. “To put it gently, targeted killings are not acceptable under international law.”
American forces have carried out more than 250 drone strikes in Pakistan since Barack Obama was sworn in as president in 2009, according to the Washington-based New America Foundation, roughly six times the number of strikes that President George W. Bush authorized during his two terms. The strikes have killed Pakistani Taliban leader Baitullah Mehsud, who was hit by a CIA-directed drone strike in August 2009; radical cleric Anwar al-Awlaki, who was killed in Yemen in September; and scores of other militants.
Nearly all of this has been done in secrecy. Koh has pushed White House officials to be more forthcoming about the CIA program, as Newsweek reported in January. Yet those officials have blocked his efforts to speak with journalists or provide more transparency about the legality of the drone program. Meanwhile, the strikes have continued to take out militants – and people who get in the way, including women and children as young as 12.
One of the victims, Abdulrahman al-Awlaki, a 16-year-old Denver native and the son of the cleric Anwar al-Awlaki, was killed in October by a missile in Yemen, not long after his father died. American officials say Abdulrahman died because of a targeting mistake. His death raises troubling questions for Koh and for other Americans, too.
What is the process for determining who will be killed, and how many innocent lives do CIA officials believe may be taken during a strike against a militant? How can these strikes be justified if, as Gen. Cartwright points out, an individual is not given a chance to surrender? On a broader scale, how did Harold Koh, who is one of the world’s most influential international-law experts, and by extension the United States, which has for decades promoted human rights around the globe as a core part of its foreign policy, get into the business of secret killings?
'Little conflict' with past roles
Koh served as assistant secretary of state during the Clinton administration and then returned to academia. Once Bush was elected, Koh, along with other international legal scholars, was taken aback by his attempt to consolidate power in the executive branch, as well as his decision to authorize harsh interrogation techniques at Guantanamo and in secret, CIA-run facilities.
Koh referred to President Bush as the nation’s “torturer in chief” and told a New York Times reporter in December 2002 that the policy of targeted killings seemed to violate the government’s long-standing ban on assassination: “The question is, what factual showing will demonstrate that they had warlike intentions against us and who sees that evidence before any action is taken?”
Koh seemed initially to have trouble with Obama White House officials, who rejected the harsh interrogation methods but otherwise adopted most of the Bush policies. “He was so far out there, and so convinced that everything the previous administration had done was wrong,” Cartwright recalls. Then came a process of meetings and discussions.
“It’s like going through these five stages of grief,” Cartwright tells me. Afterward, Cartwright says, he reassured Koh that the process, however arduous, had been valuable. “I told him, ‘Now you have conviction,’” Cartwright explains.
At 8:45 on a March morning at the Fairmont Hotel, Harold Koh already has a five o’clock shadow, and his dark jacket is wrinkled in the back. Working for the administration is hell on your looks, and at the conference he is even more wrinkled and jowly than usual. Yet even with a disheveled appearance, he has magnetism, judging by the number of women who approach him that morning, patting his arms and shoulders and whispering to him. Women – and men, too — are drawn to Koh because of his brilliance and also because he wears his scholarship lightly, making allusions to U.N. Security Council resolutions and Star Trek with equal ease. (“Thank you, Captain Kirk,” said the moderator of a State Department panel on Libya earlier this year; “Sulu, please,” Koh replied, dryly.)
One of Koh’s favorite jokes is about two Irishmen who are walking near Galway: “One of them asks the other, ‘So how do you get to Dublin?’ And the other answers, ‘I wouldn't start from here.’” Koh tells the joke to illustrate the challenges Obama administration officials face when formulating policy, though it could also refer to his own journey over the past three years.
Koh maintains in his official statements that it was a smooth path. “Because my job is simply to provide the president and the secretary of state with the very best legal advice that I can give them, I have felt little conflict with my past roles as a law professor, dean, and human rights lawyer,” he said at the March 2010 conference in Washington. Yet that may not be the whole story.
At the Fairmont, I ask Koh why he had seemed conflicted — and eventually changed his mind — about the drone strikes, mentioning what Gen. Cartwright had told me. Standing near a coffee table, Koh is quiet for a moment. “I never said that,” he tells me.
“If that’s what Cartwright remembers, he’s wrong. I never used that phrase. If you look at the speech I gave at the ASIL conference, you’ll see that I said they were not ‘extrajudicial killings,’” he says, referring to his remarks from the international-law conference in March 2010.
Koh brushes off my question about the New York Times interview in which he criticized targeted killings and claims his views on the subject have been consistent. “I have never changed my mind,” he says. “Not from before I was in the government — or after.”
When I ask him what it has been like to deal with Cartwright and other military officers, Koh starts to say something, then stops. “I’ll talk about this with you some other time,” he says. “Not standing outside a coffee shop.” It was the fourth time over the past several months he had said he would speak with me. Yet each time he changed his mind, saying that he could not meet with me, as it turned out — presumably because administration officials said no.
Koh’s friends and colleagues have different theories about why he may have changed his views about targeted warfare since coming to Washington. W. Michael Reisman, a Yale professor of international law, and the author of a 1995 paper, “Covert Action,” says, tartly, “I guess he understood it better.”
Many experts were, like Reisman, unsurprised by Koh’s argument. “I think when you join the government, you get access to other kinds of information and also hear the opinions of other professional staff,” says Charles J. Dunlap, Jr., a retired Air Force general who is now executive director of Duke University’s Center on Law, Ethics and National Security. “And I generally agree with his position. But I think the U.S. government needs to be more transparent. This is especially true now that the hot battlefields are cooling, and we’re looking ahead at years of continuous threats.”
Others, however, have been disturbed by the efforts of Koh and others to justify the CIA’s program of targeted killing. “In the Bush administration, we had leading academics who fell from grace after responding to the allure of power,” says Jonathan Turley, a law professor at George Washington University, “and what has been unnerving to many law professors is that Obama seems to have the same corrupting influence on lawyers that Bush had.”
Some legal experts who have worked for the government are uncertain about the wisdom of the current policies, particularly the authorization of the killing of an American citizen. “It’s an important question,” William H. Taft, IV, who served as the State Department legal adviser during the Bush administration, tells me in a phone interview, referring to the targeting of radical cleric Anwar al-Awlaki. “And I think a fairly close one.”
Taft has an usually deep understanding of the challenges officials face when handling national-security issues. He recalls how he felt when he saw a memo from the Office of Legal Counsel and realized that his colleagues believed the president did not have to abide by the Geneva Conventions. “I was surprised,” Taft says. “Actually, I have to say maybe it sounds a little silly, but I thought they were wrong and didn’t think we would have too much trouble persuading them they were wrong. It turned out we could not persuade them.”
I ask Taft, “Why does the law matter when everyone thinks something is OK?”
“That is actually a deep question. When a human life is at stake, there needs to be a process for determining that a person can be executed or shot in an armed conflict,” he says. “Otherwise, we will have an individual just deciding that he wants to kill someone.”
“What if it’s the president?” I ask.
“Especially,” said Taft. “He’s the main person who might possibly have this authority, and you’ve got to watch it.”
Koh has not publicly expressed doubts about the aerial-drone program, but some former officials, even the program’s strongest supporters, have. “To me, the weakness in the drone activity is that if there’s no one on the ground, and the person puts his hands out, he can’t surrender. I have to have the authority to go after you -- or not. I can’t be an assassin,” says Gen. Cartwright, now retired, sitting in his office at the Center for Strategic and International Studies in Washington. “What makes it worse with a Predator is you’re actually watching it. You know when he puts his hands up.”
Meanwhile, Koh has been speaking with conviction about the drone program, just as Cartwright once said he would. “How do we deliver justice to the enemy?” Koh asks during a panel, “In Search of Accountability: Justice After Nuremberg,” several weeks ago at the Holocaust Museum. “I think there are different ways. It can be delivered through trials. Drones also deliver.” He speaks in measured tones, with a mastery of complex legal and ethical issues, an ideal spokesman for one of the administration’s most controversial policies.
Tara McKelvey, a Newsweek/Daily Beast correspondent, researched this article with support from the Investigative Reporting Workshop. The Daily Beast is co-publishing the story.