[Marxism] Controversy Swirls Around NYU Law Professor Involved in Obama’s Drone Program

Louis Proyect lnp3 at panix.com
Tue Apr 7 14:01:27 MDT 2015

More on Harold Koh.


Ceci n’est pas une guerre
Chase Madar 24 June 2011

If anyone should have been able to put human rights at the centre
of US foreign policy, it was Harold Hongju Koh. The dean of Yale
Law School and a prominent critic of Bush-Cheney lawlessness, his
reputation was clinched by a chorus of crackpot accusations that
he wanted to smuggle Sharia law into the US courts. Surely this
was a man to undo the previous administration’s damage to American
moral prestige; as legal adviser to the State Department, Koh
would restore decency and goodness to US foreign policy.

Instead, he has been busily justifying Bush-era national security
policies. The Obama administration has failed to close the
military courts at Guantánamo, where it has tried and convicted a
child soldier of newly invented ‘war crimes’; it has perpetuated
indefinite detention and launched a legal assault on WikiLeaks.
Perhaps most significantly, it has radically intensified drone
attacks in Afghanistan, Pakistan, Yemen and Somalia. (Throughout
the campaign trail John McCain condemned the expansion of the
Afghan War into Pakistan as reckless and foolhardy.) Koh has
dutifully produced legal rationales for the drone strikes,
supplying the necessary law component to a national security
‘strategy’ of open-ended global counter-insurgency. None of this
has provoked much criticism beyond the marginal antiwar left and
libertarian right, and Koh’s justifications have been largely
ignored by pundits once outraged by similar Bush-Cheney edicts.

But Koh’s latest legal counsel has been too much even for his
former colleagues to swallow. The War Powers Act of 1973 requires
presidents to obtain approval from Congress for military action
lasting more than 60 days. If that approval isn’t given, the
executive has an additional 30 days to cease hostilities. As the
Nato campaign in Libya limped past the 90-day mark, Koh creatively
argued that it does not quite amount to ‘hostilities’ because no
American boots are on the ground – only unmanned drones,
overflying fighter jets and offshore missiles. Never mind that
American soldiers involved in the conflict are already drawing
extra ‘imminent danger pay’: properly viewed, Koh says, this war
is not a war.

Obama chose to follow Koh’s rationale over the judgment of other
administration lawyers, angering Congress (the House of
Representatives today voted overwhelmingly against further
authorisation of the Libya War), and triggering a volley of angry
op-eds from the previously somnolent law professoriate. Koh’s
casuistry is all the more dismaying because before joining the
Obama administration he strongly criticised presidential overreach
in making war.

But it would be a mistake to see Koh’s recent pronouncements as
deviating from any previously held political position. He has
expressed his admiration for the late Walt Rostow, a family
friend, leading development economist and, as national security
adviser to Kennedy and Johnson, influential advocate for
carpetbombing North Vietnam. Koh was opposed to the Iraq war not
because of its political folly or the massive civilian casualties,
but because it wasn’t legal. If the US could have finagled a UN
Security Council resolution to authorise the invasion, the
thinking goes, the disaster would somehow have been redeemed by
its lawfulness. To Koh’s cast of mind, what matters most is a
conspicuous respect for the law: great effort must always be taken
to fashion a legal rationale that can pass the straight-face test.
This sensibility turns out to be marvellously flexible when put in
the service of state power. ‘No more ignoring the law when it’s
inconvenient,’ Obama liked to say on the campaign trail. Exactly:
don’t flout the law à la Bush, twist it assiduously while making
noises about human rights and hope no one will notice.

Koh’s pliability is less a perversion of human rights law than a
vivid illustration of the doctrine’s limits. Human rights law
derives much of its legitimacy from being militantly apolitical,
and within its sphere it can and does accomplish much good. But
when it comes to larger political questions, especially whether or
not to wage war, the doctrine offers little guidance. Not that
this has stopped human rights grandees from using their discipline
to prop up the interventionist ‘responsibility to protect’,
currently in diplomatic vogue. The leadership of Human Rights
Watch, for instance, heartily endorsed the Libya War and demanded
that the same type of ‘unified and decisive action’ be taken in
Côte d’Ivoire. The mystical belief in an immaculate war that
strictly obeys human rights law and all jus in bello restrictions
is a creed whose humanitarian adherents are, time and again,
cruelly astonished by the inevitable carnage that ensues.
International law is important, but it should never crowd out
discussion of interests, politics, ethics and – above all –

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