"War on Terror," an Insider's View: A Conversation with Harold H. Koh

February 25, 2014

Introduction

JAMES TRAUB: Good evening.

We are very fortunate to have with us this evening Harold Koh. Harold is an exemplar of a great American tradition, of moving back and forth between the world of law and legal scholarship and public service. Harold is one of America's leading authorities on international law, human rights law, and was the dean of Yale Law School. At the same time, he served in the Reagan administration, the Clinton administration, and then the Obama administration as counselor to the State Department, where he was responsible for a whole range of issues involving the war on terror, among other things.

Harold, thank you so much for coming.

HAROLD KOH: Thanks for inviting me.

Remarks

JAMES TRAUB: I want to ask you first a little bit about how you came to do what you do. We were just talking beforehand about your family. Harold's father was a highly regarded Korean diplomat, who was here during the moment of a coup and, rather than return and work for the new government, took a vow that he would not work for that government, and never did so.

So I take it that questions of conscience were really a profound thing for you growing up, since this was the example you had before you.

HAROLD KOH: Yes. My dad was probably the first Korean to study law in America. He very much wanted to serve a democratic government in Korea. What happened was that he became the chargé, the number-two guy but the acting ambassador in Washington. There was a military coup, and everybody in the embassy got together one night in 1961 and they vowed that they would never serve the military government. My dad was the only guy who kept the promise. [Laughter]

And by the way, the other people went on to great positions of importance in the military government.

My dad was a college teacher. I asked him once, "Do you ever regret your choice?"

He said, "There will always be people in these jobs. Nobody will remember them because they don't stand for anything. If you stand for something, people will remember you even if you're not in these jobs."

So that has been sort of my motto, I hope.

JAMES TRAUB: So you became a lawyer. But, beyond that, you obviously went into a kind of morally driven aspect of the law. So I take it that that is part of that inheritance, that you did a thing that had to do with serving social justice.

HAROLD KOH: Koreans have a slogan, "Theory without practice is as lifeless as practice without theory is thoughtless." It makes me feel uncomfortable to be just a professor without actually practicing.

When I was in college with you, Jim, one day I was in a class and they started talking about "in and outers," people who go back and forth. They mentioned Henry Kissinger, Ken Galbraith, Daniel Patrick Moynihan, Robert Strausz-Hupé, Lincoln Gordon. I wrote a paper about it. I thought, "Hey, this is a good thing. You never get bored." So I decided to try to pursue that.

JAMES TRAUB: You decided to become an in-and-outer.

HAROLD KOH: Yes, not consciously. The first time I went to the government, it was the Reagan administration. It was very exciting.

JAMES TRAUB: Given what I imagine were your convictions then and the Reagan administration then, how come you did that? Did you find that hard to do?

HAROLD KOH: No. I didn't know how bad the Reagan administration was going to be. [Laughter]

JAMES TRAUB: It took you two years to figure that out?

HAROLD KOH: No. What happened was, I actually had gotten a job there when I was clerking at the Court of Appeals and had accepted. Then I was so turned off by the behavior of the Reagan administration, the year that I was clerking at the Supreme Court, I decided to go to private practice.

But I didn't like private practice. One day I met a friend who said, "I'm working at the Justice Department, Office of Legal Counsel. It's a great office."

The head of the office was Ted Olson, who has become very famous since. He was actually considered one of the most liberal lawyers in the Justice Department at the time.

JAMES TRAUB: Which tells you probably all you need to know about the ideological spectrum at that time of the Justice Department.

HAROLD KOH: People are surprised by what Ted has done since in many directions. But I always thought very highly of him. He's a tremendous lawyer. We had a fantastic time working together. Many of the people in that office went on to become academics.

I remember leaving the Justice Department and saying—actually literally shouting to the empty halls, "Next time I'm coming back with the good guys." I thought, "I'll never work in an administration again that I didn't vote for, and I'm not going to."

JAMES TRAUB: Thank god it was only eight years before another Democratic administration came in.

HAROLD KOH: Yes. I thought it was actually a very fateful choice.

JAMES TRAUB: Let's talk just a little bit about the work you did in between those two periods. The thing that I think some people know about is that you were involved with representing Haitians who had been interred at Guantanamo. Maybe you can take either that, or just one other example, to give us a sense of the fusion of academic interests and activism that you were engaged in.

HAROLD KOH: The students at Yale Law School wanted to start a human rights clinic, which was essentially a law firm. In 1990 we started it. We did some human rights cases, but mostly writing amicus briefs, which are not contested.

And then the first Bush administration started bringing Haitian refugees to Guantanamo. That was more than 20 years ago. I had never heard of Guantanamo, except in the song "Guantanamera."

JAMES TRAUB: Few people know that it actually once meant "beautiful woman."

HAROLD KOH: "The beautiful woman of Guantanamo." Since then, I've been to Guantanamo 19 times.

JAMES TRAUB: It turned out to be beautiful or no?

HAROLD KOH: Well, a couple of years ago I went to Havana on an educational license. I remember landing and thinking, "This is the first time I'm in the communist part of Cuba." It was really something.

We worked on Haitian refugees. There were at one point 30,000 there.

The next year, Cuban refugees came and I decided to represent them, and I went back down there then. There were about 40,000 there.

I went back again to represent Chinese refugees. At my last birthday, my wife pointed out that I had been working on issues surrounding Guantanamo for something like 17 of the past 21 birthdays, which was pretty shocking. So I have now seen a lot more of Guantanamo than I ever cared to see.

JAMES TRAUB: Perhaps you may have finished your Guantanamo experience. We're going to come back to this a little bit later in our conversation.

HAROLD KOH: Probably.

JAMES TRAUB: Maybe we can also talk briefly about your service.

Harold was the assistant secretary of state for democracy, human rights, and labor in the Clinton administration. That's especially the democracy-promotion job in the Clinton administration. Maybe you could just talk about this for a minute or two, because that whole issue has been so contested. People think Obama doesn't care about this stuff. Bush turned it into a kind of religion. Was it a meaningful part of Clinton's tenure?

HAROLD KOH: I think it was.

I worked for Madeleine Albright, who had a very similar background to my own, and we had a deep friendship, which continues to this day. We worked on the Balkans. We worked on Kosovo. That's where I met Dick Holbrooke, who I continue to view as a tremendous figure in diplomacy. We worked on Sierra Leone. I went to North Korea with Albright, which was a mind-boggling experience.

I think America to the world is a beacon. I've said this before, but my mother, when Korea was divided, was actually in a house in North Korea. It was only through a miracle that she got out.

When I flew from North Korea to the South with Albright, we took off and we were in total darkness. That's because in North Korea they can't feed themselves and they don't have any electricity. In less than 30 miles, you're over Seoul, which is just glowing with lights. And these are the same people. The only difference is the political system they have existed under.

Koreans who cannot motivate themselves to feed themselves—think about that. That's a shocking thought. And then you land and you're in the world of "Gangnam Style." I remember thinking, "What more proof do I need that democracy makes a difference? It's a world of darkness and a world of light."

JAMES TRAUB: It also just occurs to me, hearing you say this and when you said your similarity to Madeleine Albright, that your background also it sounds like gives you kind of a vein of patriotism, which maybe also differentiates you from a lot of the kind of left academics whose world you live in.

HAROLD KOH: I'm the son of immigrants. I've had these jobs that you've described. Where else does that happen?

In fact, at the very end of my father's stay in Washington, he went to see Walt Rostow, the deputy national security advisor, who was helping him with regard to the coup in Korea.

Rostow said to him, "What are you going to do now?"

My father said, "I don't know. I'm unemployed."

He said, "You know, my brother is the dean of Yale Law School, Eugene Rostow."

He called him up. My father witnessed the call, which was so short that he couldn't believe that anything had transpired. He said Rostow went back and was looking at papers on his desk.

My father said, "What did he say?"

He said, "He said, 'Can you get here in a week?'"

We went there a week later, and 40 years later I was dean of Yale Law School. So how can you not be patriotic if that's your life story?

JAMES TRAUB: Let's move forward to 2009. You take this position with the Obama administration. I take it that in some really fundamental way it was harder than the Clinton job. The Clinton job was very much consonant with your own principles. Here you had to find a way of dealing with really tough issues involving things like targeted killing, detention, and so forth, things that you were not naturally comfortable with. Did you find this difficult?

HAROLD KOH: In the human rights job, I was an internal advocate pushing for the human rights position. As legal advisor, I had to give my opinion as to whether things are lawful or not, and there were policy calls being made.

So you can say one of three things: it's lawful; it's unlawful; or sometimes its lawful but policy-unwise, or as we call it "lawful but awful." [Laughter] If something's lawful but awful and the policymaker wants to do it, you can say, "I think it's a bad idea," but it's still their choice. If your client is Hillary Clinton or Barack Obama or both, they get a chance to choose from among the lawful options.

The difficult part is clarifying what is a lawful option that's available to them or not, and then you go and defend it.

JAMES TRAUB: You put that, Harold, in a very cool way. In one of your speeches, you made the point that part of your job was to be a conscience. As you said just now, it was also a question of what was wise, what was moral. Were there moments that you can think of now where you came out inside the administration on the side of "this is legal but it's wrong and we shouldn't be doing it"?

HAROLD KOH: I didn't usually say it was wrong. I said, "This is legal but it's not the best option overall."

JAMES TRAUB: Can you give an example where that was the case?

HAROLD KOH: I can think of a number of examples. [Laughter]

JAMES TRAUB: Can you share one that you can think of?

HAROLD KOH: No.

JAMES TRAUB: If the audience just closed their ears or something? [Laughter]

HAROLD KOH: You know, part of the game is when Secretary Clinton asked me to do the job, I said, "I have two conditions." I said, "If there is a widespread return of refugees, I will quit, because I've spent my life working on this." "Second," I said, "I have to be at the table for every important decision. If I'm overruled, I can defend the decision if I was there, but if I didn't know about it, I can't defend it."

She said, "You'll be there."

JAMES TRAUB: You were?

HAROLD KOH: She always lived up to it.

Part of that means that if you lost—by the way, if I ever said, "It's illegal," they never did it. If I said, "It's legal but I don't know if it's good policy," then somebody else can overrule me on the policy call.

JAMES TRAUB: Did you wind up taking positions that you wouldn't have thought you would have taken beforehand because the world looked a lot more dangerous from the inside than it had looked to you from the outside?

HAROLD KOH: When you're in the government, you're receiving constant threat streams. Literally, every day you read about threats and close calls and things that didn't quite happen.

When I'm a professor—and I am again now—I memorize the names of all my students and I know their backgrounds and their aspirations. Shortly after I got to the State Department, I was looking at a list and I realized I had to memorize the names of all of the al-Qaeda senior leadership. And guess what? They're the same age as my students.

JAMES TRAUB: Did you have to memorize their names because they were possible targets for a targeted killing?

HAROLD KOH: I had to memorize their names because they were possibly going to attack the United States. There's a hierarchy, there's a command structure, there's an initiation ceremony.

The most emotional moment was one guy who was born on the same day as my daughter, the exact same day. I just spent about an hour-and-a-half looking at his curriculum vitae, you might say. I remember the day she went to the prom, he was initiated into al-Qaeda. On another day he led a suicide strike. He was really involved in dozens and dozens of plots. He was a very able person.

To think that here's my daughter, here's this guy, two different sets of life opportunities. It wasn't clear to me that he would do anything other than what he was doing.

We're not talking about propaganda. We're talking about building bombs, creating delivery mechanisms, sending emails that you could read that were pretty unmistakable in their intent.

It was a pretty incredible experience, because you have to know who these people are. Many of them have similar names. Some are real threats and some of them aren't. So there's no excuse basically for just doing your homework.

JAMES TRAUB: One of the things that you rendered legal decisions about, and have since been reproached for by some of your former colleagues in the legal community, was the whole area of targeted killings. It's clear from what you say that you cannot think of that question the way an academic would if you're the person sitting there looking at this real example of a real person. So I assume that changes you when you're in that position.

HAROLD KOH: You certainly feel responsible and you certainly feel determined to do it correctly.

First of all, the laws of war—some people said to me, "How can you criticize torture and defend the legality of targeted killing in certain circumstances?"

The answer is pretty simple, that torture is always illegal, no matter when done. The laws of war distinguish between lawful and unlawful killing. So the job of the lawyer is to say, "This killing is lawful because it's against an enemy with whom we're in armed conflict and this one is illegal because it's not."

So you have to draw these lines. That means you have to know who these individuals are—not just label them, but what they have actually done. And then you have to determine whether it would be lawful to target them.

Let's take an example. The admiral who did Pearl Harbor, if he wants to do it again and we're in armed conflict with Japan, he can be targeted lawfully. I don't have to like it, but I certainly don't think that's illegal.

JAMES TRAUB: You talked about the laws of war. There's something very unusual about the kind of war that we're talking about now, because it's not limited in space; we hope it's limited in time—it has gone on for a long time; it's not clear when it will end. So does this pose a problem that the laws of war were not exactly designed, such that, for example, when you talk about the legal right to indefinitely detain belligerents because the laws of war permit that, in this case we're talking about something that could be indefinite for the foreseeable future, because the war on terror could be going on for the foreseeable future, and it could involve a battlefield anywhere in the world because those adversaries can be anywhere in the world?

HAROLD KOH: I reject the term "war on terror." There is no such thing. The Obama administration has never used that term. The term is "the armed conflict with al-Qaeda, the Taliban, and associated forces." They are the people who attacked us on September 11th.

On September 18, 2001, Congress passed a statute declaring war on those people. Under the laws of war, we're in a non-international armed conflict with that non-state actor, and the Supreme Court so said in a decision. So it is lawful, in the course of this armed conflict, to attack those people and to try to defeat them, detain them if possible and, if not, as in the case of bin Laden, to kill them. You may not like it—I don't like it.

But many of the same people who never to my mind questioned dropping the atomic bomb in Hiroshima and Nagasaki on large numbers of innocent civilians have qualms about this or legal considerations, without explaining to me what their legal theory is as to why it's either illegal or immoral to do so.

JAMES TRAUB: But I just want to press this point. Again, whatever the nomenclature is, the authorization that was created by the Authorization for the Use of Military Force, which applies, as you say, to organizations that either did or are associated with those who carried out 9/11, means that all sorts of other organizations that themselves had nothing to do with 9/11 but that choose to put the words "AQ" in their title—AQAP [Al-Qaeda in the Arabian Peninsula], for example—in different parts of the world, in North Africa and Yemen and elsewhere, they are also part of that.

HAROLD KOH: Not necessarily, Jim.

JAMES TRAUB: So this is a distinction. Some of these AQs might be and some of these AQs might not be?

HAROLD KOH: I'm a lawyer. The term we apply is a test of co-belligerency, which means a functional alliance. When the Japanese make an alliance with a Mussolini, that's a formal alliance. When the Germans fight alongside Vichy France, that's a co-belligerency. [Co-belligerency] means that the group actually has to have entered the conflicts against the United States alongside al-Qaeda.

Now, some of them—AQAP, al-Qaeda in the Arabian Peninsula—clearly have done that. To the extent to which they are under the command and control of Zawahiri, who is the current leader, if he gives an order, they will attack, and they have aspirations against the United States. But that is quite a small group.

Now, I would distinguish somebody like Tsarnaev, the guy in Boston. These people are sympathizers or emulators, but they are not part of al-Qaeda.

So here's the great irony. If instead of invading Iraq, instead of torturing people, instead of opening Guantanamo, instead of doing extraordinary renditions, the focus had been on attacking the core of al-Qaeda when they were concentrated in Afghanistan, this could well be over 10, 15 years ago.

And by the way, if at that moment the president had said, "I'm sorry, but I believe that the people who did 9/11 are all together and I'm going to have to use a drone because I can't get them any other way," if it was October 2001, I think most people would say, "That's what you've got to do."

And by the way, it's not illegal because we've declared war; Congress has declared war. It's not against the whole world, it's against this particular group; and it's to prevent another attack.

So what happened? Years later we have done all those things we should not have done—we invaded Iraq, we tortured people, we created Guantanamo, we did extraordinary renditions. Those people are dispersed. The exact same method is being used now, drones, and people are seeing this as some sort of parallel to the problems or the errors that were made before. I think they're different.

JAMES TRAUB: I want to ask about that. You've often made the point that Bush carried out his "war on terror" with indifference, sometimes contempt, for international law and for legal principle in general and that Obama is extremely conscious of that and you wouldn't have served there if he weren't.

So the process is radically different between the two, but the outcome seems less radically different than the process does. That is to say, this is an administration that obviously uses drones more than Bush did and engages in the indefinite detention of belligerents. We could go down the list.

So could you explain why it is important in itself to be law-observing, even if you wind up coming to a similar outcome to one that this non-law-observing person came to?

HAROLD KOH: Because I think that if you're trying to get legitimacy for your actions, being law-abiding and obeying rules that you would expect others to apply, it helps you. For example, I would be willing to have the same rules that we apply on drones be the rules that apply to the Chinese or the Russians.

JAMES TRAUB: You would?

HAROLD KOH: Yes, because I don't think they could meet those standards with regard to any target that they have available to them now. So these are pretty rigorous standards. I don't agree that the outcome is the same.

JAMES TRAUB: I didn't say the same. I said surprisingly similar given how very different the process is.

HAROLD KOH: Here's how I think of it, Jim. You know, there's a fork in the road and they take the wrong road. If you're an academic here, you say, "Here's where the mistake was made. My analysis is over. You can't go back."

If you're in the government, you say, "They went down the wrong road. Now how are we going to get from the wrong path to this path?" It takes a long time.

You know, I was very opposed to the invasion of Iraq. I thought it was illegal. Our soldiers were there. When I went there, I worked for two years on all the aspects of disengaging.

During that whole period, people are saying, "You're doing the exact same thing as your predecessors"—except at the end we were out of Iraq. So you were actually deviating the road and getting back to the right place. But from people who are looking from the outside, they see no difference.

So I see a difference. Obama doesn't torture people. Obama announces legal standards. Obama is trying to close Guantanamo; he is not completely successful, but he is making progress. Obama is willing to bring cases in civilian courts. Obama has closed black sites; he doesn't do extraordinary renditions; and, most fundamentally, he is trying to get out of Iraq, Afghanistan, and he is trying to end the war with al-Qaeda.

He hasn't succeeded. But, by the way, if he gets those things done, or even most of them done, that's a substantial change.

JAMES TRAUB: Guantanamo is obviously a flashpoint in all this stuff, because Obama said, "We're going to get out of this place by the beginning of 2010," and he appointed a senior figure, Greg Craig, to make that happen.

Is the fact that he was unable to do so chiefly because the politics were so adverse or because it just turned out to be incredibly complicated to find a way of putting all the people that have to be put someplace into the right place to put them?

HAROLD KOH: I think it's a combination of things. I think it wasn't the top priority. The top priority was getting health care. So when opposition came on this front, they didn't fight on these issues to the extent they should. Congress got involved and put on various kinds of restrictions. They should have challenged those restrictions.

But, to Obama's credit, last May he went back and got the issue and said, "I'm going to do it," and he appointed a new special envoy, Cliff Sloan, an excellent lawyer.

The numbers started at about 170. They're now down to about 150. My guess is it will close during Obama's time in office.

Now, a big piece of this is that there is a larger number of Yemenis, about 90. If they can negotiate a block move of those 90, then you're down to 80. If you move some people off for medical reasons—they have just had a plea deal for a guy, al-Darbi. If the Taliban negotiations go on, a couple more people will go off.

So what's happening is the big-bang closure possibility is over. But if you think of people in different buckets, those buckets can be brought down.

My best guess is that on his last day in office some number will be brought off and they will be closed, because I think Obama genuinely wants to have closed Guantanamo.

Everything I'm hearing is that every day he asks "How come it's not closed?" or "What kind of progress are we making?" etc., etc. That's a different kind of signal than earlier in the administration, when there were a million other issues that were in play.

JAMES TRAUB: Is there a similar story on military tribunals? Again, Obama really wanted to push movement towards the use of civil tribunals. And again the politics turned out to be really adverse, and again it seems to me that the Obama administration just didn't want to spend the kind of political capital they might have had to spend to take on the Republicans on that one. And so they wound up resorting to military tribunals more than, I assume, Obama or you would have liked it or expected to.

HAROLD KOH: I never would have created the military commissions. I wrote against it when they were set up. They were challenged as unconstitutional and found unconstitutional by the Supreme Court. They revised them.

The case they should not have brought there was the Khalid Sheikh Mohammed Five. The original decision was to bring it in New York. People here objected. I thought it was a tragic moment. In all the major capitals in the world, the major bombers and terrorists have been tried in the capital—the Madrid bombers, the seven bombers in London. It's a way of showing that we go on. By the way, we've had a number of terrorist trials in the Southern District of New York. We've had no terrorist incidents.

JAMES TRAUB: And yet Ray Kelly, then the police commissioner, raised such a fuss about it that it became almost impossible politically to force the issue, first Kelly and then Bloomberg. [Editor's note: Check out Ray Kelly's 2012 Carnegie talk.]

HAROLD KOH: I think that's where the liberal politicians didn't stand up for these principles.

Those cases then moved to military commissions. But to be honest, very few others have.

Meanwhile, the Southern District of New York prosecutor's office has been getting convictions in other cases.

I think the military commissions will be a very small piece of this. Probably Khalid Shaikh Mohammed and his colleagues will be tried in the military commissions. Obama is talking about moving the military commissions to the United States. So I don't think this is going to be an episode where hundreds of people are tried in the military commissions. I think it will be one with maybe 15 or 20 people. If it was my prosecutorial choice, I wouldn't have brought them there.

But I don't think it has brought an end to our civilian justice system.

JAMES TRAUB: Would that also be a case of here we find ourselves and we can't undo what we inherited?

HAROLD KOH: It's a case where I think, if there was more focus and direction at the beginning, we wouldn't have gotten into the situation. But being where we are now, I'd rather end up in the right place than to just give it up altogether.

By the way, I don't think the conditions on Guantanamo are illegal. They were at the beginning. I went down there. It's a maximum security prison. There are quotations from the Geneva Conventions all over the place. It's the most expensive maximum security prison in the world. People are held there at well over $1 million a year.

JAMES TRAUB: You'd think the Republicans would think that was a good reason to get rid of it.

HAROLD KOH: They should. It's crazy.

You know, Timothy McVeigh blew up the federal building in Oklahoma and he was arrested, tried, taken to a prison, and executed. People didn't say that it was too unsafe for him to be held there.

JAMES TRAUB: Can I stop you for a second? What you're talking about goes to something which is outside of politics but something I think Obama would have liked to have affected and perhaps hasn't, which is this hysteria, this profound, unreasoning fear connected to something very reasonable but still too deep, the post-9/11 panic. I know Obama talked a lot when he was running for president about this very fact.

Should we say he just has not been able to really bring down that fear?

HAROLD KOH: I think the fear has gone down just by having some distance from it and not having had another major attack in 12 years, 13 years. That's not an accident. I mean people work really hard.

The danger is being over-inclusive. We see over-inclusiveness in everything we do. You know, you go through an airplane security detector and you see some grandmother going through it. Does she really need to go? Couldn't we be more discriminating and still be as safe?

But, you know, Americans tend to do things not by half steps. And nobody wants to be the person who cut a corner that made the difference. When you're in the government, you're acutely aware of this fact.

So, for example, there's 9/11, there's a cartridge bomb, shoe bomb, underwear bomb, Times Square bomb, subway bomb. So these are serious. They didn't succeed, but it shows that people are trying.

JAMES TRAUB: I want to talk a little about drones and then I'm going to throw it open to the audience.

You were one of the few people in the administration who actually spoke publicly about a subject that otherwise was not to be mentioned. Since you've been out, you gave a speech at Oxford Union where you criticized the administration for not being transparent enough on this subject and for not seeking to work enough with allies and with Congress. But the impression I got from that was that you thought substantively the policy was right and drones have been rightly used.

So I wonder how you respond to the very widespread criticism that, for example, the overwhelming fraction of targets of drones have not been people who were plotting imminent violence against the United States, have not been senior leaders of al-Qaeda, have not even been people who are in many cases individually targeted, but are people who, because of the pattern of what they do, because of a legitimate fear of what they might do, for a whole series of criteria less than that, have wound up being targets of drones, and that's a kind of drift of the original policy.

HAROLD KOH: Let me take that in pieces.

Number one, I give a speech because I think if we do something and we think it's lawful we should explain our legal basis and then people can challenge it if they disagree.

Number two, I don't think drones are inherently illegal. For example, there are some weapons I think are inherently illegal: chemical weapons are inherently illegal; land mines are inherently illegal. Drones can be legal if used consistently with the laws of war or can be illegal if used indiscriminately. What I was explaining was the standards that I thought were used that would make it lawful to do so.

Now, it's pretty clear if you read the paper that drone use has centered in three countries: Pakistan, Somalia, and Yemen. The fact of the matter is that the first action is one that is barely reported and where it seemed to be part of an ongoing theater of armed conflict connected to what's going on in Afghanistan. That's where the use seems to be broader.

Now, my view was there should be transparency about standards, consultation with Congress and our allies, and then the beginnings of an international agreement as to how they should be used. I think the president has announced standards, and the other parts are only just beginning, the consultation and the international standard-setting exercise. I think there should be more of that.

Now, where I think the administration really should speak is how many civilian casualties they think there are. Everybody I know in the administration thinks that the numbers in the press are wildly inflated.

JAMES TRAUB: But the number zero presumably is wildly inflated in the wrong direction, which has been used by military officials in the administration.

HAROLD KOH: They haven't put out a number. They pulled that number back, but they don't have a number. But simply repeating numbers that are on the Internet doesn't actually confirm. But I think it should be on the administration to say what they think the numbers are.

Now, I think the reason they don't, is that it would just invite a debate over the methodology of what is or is not a civilian casualty.

I think in the places where these are done on a very limited basis—for example, if you look at the most recent operations that were done, the individuals who were targeted from my perspective met all the legal requirements.

JAMES TRAUB: There was just in Yemen a strike that killed 14 people in a wedding party.

HAROLD KOH: They have not conceded that that was correctly done. There is an after-action on that. The military announced their own investigation of it. And I don't know if it was a wedding party or not.

By the way, I think that—I understand that the media sees this as a string of—let's face it, we grew up in the Vietnam era. We're used to having people not tell us things. But if I was in the government and I thought that this was being done in as careless a way, I would have resigned long before. In fact, I thought the opposite.

I think the transparency would help because you see how much care and concern and detail and information goes into it. That doesn't mean there aren't parts of this that I wasn't privy to, and I don't vouch for those.

JAMES TRAUB: One last thing. This expression "signature strike" is used to describe a drone strike the target of which has a pattern that would then justifiably trigger the strike, but it is not against a specific individual about whom you have the kind of intense biographical knowledge that you've talked about otherwise. Is that a thing that you are uncomfortable with—not even necessarily legally, just from the point of view of is it right or is it wise policy?

HAROLD KOH: I think this is one of the most misunderstood things. They started with what are called "personality strikes," which is Osama bin Laden. If you see Osama bin Laden, you know he has killed many people. He is a declared enemy, he is legally identified. You can lawfully detain him if you can or target him if you cannot, which is what happened.

So let me surprise you. The raid on bin Laden was a signature strike in the strict sense of the term, in that you don't see his face, but you have other indicators, or what are called selectors, that strongly suggest that he is the person. If you saw the movie, one person said, "I'm sure he's there" and the other person said, "I'm not sure he's there." But they had enough certainty that they went ahead with the operation.

So that's a signature strike. To the extent to which it is based on the same factors as a personality strike, I think it's lawful.

JAMES TRAUB: So are you saying a signature strike is the case where you are looking for a specific individual but you're not 100 percent certain it is that individual?

HAROLD KOH: I wasn't finished.

Where there was a mutation of this concept, and I think one that was not carefully controlled, is that there were so-called group signatures. So the same term "signature strike" that was used for an individual started getting used to describe a strike on a house that was draped in an al-Qaeda format. Those led to, I think, discoveries of people who shouldn't have been killed or who were civilian casualties.

Now, it's pretty clear that a group signature is actually simply a way of saying "We're targeting something that we don't know any individual in the place." That, to my mind, pushes the concept of signature beyond what it should have been.

Now, what ended up happening is after this was discussed, the term "signature strike" was eliminated and they don't use that term anymore.

JAMES TRAUB: Did you, by the way, have reason to weigh in on exactly this question in debates inside the administration?

HAROLD KOH: What do you think?

JAMES TRAUB: I don't know. I'm the one asking the questions here.

HAROLD KOH: If you look at President's Obama's speech at the National Defense University on May 23, 2013, where he specifies that there must be near certainty of no civilian casualties and that the target is a continuing imminent threat on a personality basis, that's what I've been advocating for and think is lawful.

JAMES TRAUB: So he was there saying we're not going to any more do signature strikes in that sense of the word that you've just described, just in some other sense?

HAROLD KOH: That's the controlling policy of the administration. Now, there is a fact sheet that was issued alongside that enumerated all of this. I believe that that's the law of the administration right now.

Questions

QUESTION: My name is Kevin McMullen.

I'd like to ask you to explain the commitment of the Clinton administration to human rights in the Rwanda crisis. General Dallaire spoke here and at the Association of the Bar and was very critical. In his book, he describes the Clinton administration as positively obstructive, warning in various fora that it would not support action in Rwanda, and when it was finally forced to, got the rustiest old APCs [armoured personnel carriers] it could out of storage, took out the weapons, took out the manuals, took out the spare parts, to be as little helpful as possible, and even refused to provide satellite photographs so he could at least deploy his small force in the best possible way.

HAROLD KOH: Rwanda was a failure. I wasn't in the administration at the time. By the time I arrived, which was 1998, pretty much everybody I worked with conceded that it was a failure, and they said that they wanted to make sure that something like that didn't happen again.

What I think was misjudged—people were exhausted, but they also didn't fully gauge what kinds of commitments could have been made to prevent the slaughter from occurring, and nobody expected that this kind of mass slaughter by machete would happen. And it happened. President Clinton has publicly basically said he wishes he had a do-over on it.

I think we were living at the time in the wake of "Black Hawk Down," fear of putting U.S. ground troops on the ground in Africa. There were a lot of things going on. But I don't think anybody doubts that it was a failure and we should learn the lessons from it.

If you read Samantha Power's book—she is now the UN ambassador—she certainly agrees that it was a failure. [Editor's note: Check out Samantha Powers' 2002 Carnegie Council talk on her book, A Problem from Hell.]

JAMES TRAUB: Do you think that Obama is going to, in retrospect, see Syria as, if not his Rwanda, then maybe his Balkans, where he should have acted and failed to act?

HAROLD KOH: I think that he certainly regrets where the situation is now.

The question is, where were opportunities to act and have we missed the last opportunity? I don't think so. Those of us who lived through the Balkans—and you're one of them, Jim—know that there was a very extended and horrible period before finally it motivated a set of discussions. Very few people now talk about the lead-up to things like Dayton.

My impression is that, for example, the effort to get a Security Council resolution on humanitarian aid during the Sochi Olympics was really designed to make sure that Putin would have to veto something during the Olympics, which he was unlikely to do. As you saw, it passed on the very last day.

One of the complications, I think, with Syria, to be honest, is that it's not clear what kind of intervention will make things better because it's a very messy situation.

JAMES TRAUB: Do you think had Obama acted 18 months, two years ago, there might have been more of an opportunity than there is now?

HAROLD KOH: I think that early on people thought that Assad couldn't last, and now they think he can.

When I teach my students now, I put them in the frame of the decision-maker, and the question is always "Why me, why now, why this?" To be honest, most decision-makers, when that's put to them say, "Why me rather than somebody else, why do it now rather than later, and why do this as opposed to something else?"

It's very difficult often to explain why now is the time when you must act when tomorrow is another day. Something might change. When you miss these opportunities, you look back very ruefully.

It's interesting. When you're outside the government, you look at the government like a machine, and failures are unforgivable. When you're in the government, it looks like a very human enterprise and it's amazing how well it works.

It's also amazing how few of the people who are criticizing could do as well.

JAMES TRAUB: I try to remember that myself when I engage in my nickel-and-dime punditry.

HAROLD KOH: I think you should be held to high standards if you're in the government. The U.S. government should be held to the highest standards.

The complication is that it's just not so easy. When I watch Derek Jeter play, I think, "He made an error." On the other hand, I couldn't get close to the same ball. So it's pretty hard.

JAMES TRAUB: Derek Jeter thinks that about you, actually. It's those decisions you make. [Laughter] It's the same thought.

I'm curious. Now that you're back in academia, surrounded by people who have been saying for the last several years "You're a hypocrite and you've lost your bearings and you've betrayed your principles," what is it like for you to be back at Yale?

HAROLD KOH: It's fine. [Laughter]

JAMES TRAUB: Okay. Next question.

HAROLD KOH: No, no, no. I mean I have a thing I say to people, which is, "What would you do instead that's better? If you don't have something you would do instead that's better, then I need to hear that."

At the end of the day, some people are doing it and some people are talking about it. If you want to be one of the people doing it, you have to take the criticism that comes when everything doesn't go right. Frankly, I think many people in academia secretly feel that, that they think they could have done better but, to be honest, they're not sure.

QUESTION: Eddie Mandhry with New York University and also a Carnegie New Leader.

My question is specifically on the responsibility to protect [R2P]. I know you had mentioned that Obama made a mistake by saying that there was a "red line" and not necessarily taking action in terms of Assad's use of chemical weapons. What is your position in terms of the United States facing a situation where there is a country that uses weapons of mass destruction against its own people internally? Is there a way to go about the UN Security Council where there's one member that is persistently vetoing a resolution that would call for action?

Secondly, on Uganda, Uganda receives the majority of its assistance from the United States. Yesterday the president signed into law a bill that makes it illegal for people to be homosexual in Uganda. What should the United States be doing in response?

HAROLD KOH: As far as the latter, I think the United States should put pressure on them through diplomatic channels on this subject. I think it's a violation of human rights. I don't think we should just let it go.

On the first, what I actually said in a blog called justsecurity.org is that Obama's red line is not his personal red line, it's the world's red line, it's a legal red line. I do think it's a red line, in that do we really want to go back to a period where people are using per se illegal weapons?

Now, as I understand it—and maybe I've got it wrong—the statement, "This is a red line," was supposed to be made in a formal way and that it would be combined by going to members of Congress and getting them to agree that if the red line were breached they'd act together, and going to our allies and also saying the same.

Instead, that speech was not given and the president said it in an interview, in which it just sounded like a point of personal preference, and none of the collateral politicking and prep work was done. So when the moment came when it became clear, August 21st, that the red line was clearly breached, it was impossible to get the kind of either multilateral or congressional support for it that was necessary.

So the principle was right but the politics didn't support it. And that's a tragedy. But again, it's difficult to be the president.

JAMES TRAUB: If I could sum up the R2P question—and, of course, Obama has very much embraced the responsibility to protect as a principle. But I remember he was interviewed in The New Republic, and they said, "You are a believer in this principle of the responsibility to protect but you haven't acted in Syria."

He said, "Well, okay. Millions of people have been killed in Congo and I couldn't act there. So there's no way of being consistent on this question."

That struck me as a kind of disingenuous thing for him to say. Isn't it clear that if you're going to have a principle like this, you are going to be inconsistent and you will intervene where you can and you won't where you can't? So I take it the fact that you can't successfully intervene in some places is not a justification for your not intervening anywhere at all.

HAROLD KOH: I agree. The fact that you can't always do the right thing everywhere doesn't mean that you shouldn't do the right thing when you can and where it will make a difference.

I think Obama did that in Libya and, frankly, didn't get a lot of credit for it. In fact, he got criticized for "leading from behind," when in fact I think thousands of lives were saved and it was a thing that brought about the end of the Qaddafi regime.

JAMES TRAUB: What about the War Powers Resolution question on Libya? You're someone who, I believe, in the run-up to the Persian Gulf War, wrote something that said that the first President Bush was wrongly stating that he did not need Congress's affirmative approval in order to be able to go to war against Iraq.

Now, Obama did not feel he needed Congress's affirmative approval in order to not go to war, in order to engage in hostilities against Libya. So why was the one wrong and the other one okay?

HAROLD KOH: Because one was a major offensive war that was at a very grand scale and the other was the United States participating in a supporting role and a civilian protection mission in which the height of the military activity was in the first couple of days and then it dropped down to a very low level for the rest of the way. So there is a factual distinction.

Now, the key on the War Powers Resolution was we had three options going forward:

  • One is do nothing, in which case tens of thousands of people would have been killed in Benghazi. There's little doubt about it. Threats were being made, etc.

  • The second is to go to Congress and get their approval, when in fact most of the key leaders had said that they didn't think that the War Powers Resolution applied and they wouldn't give the approval. So going to Congress was also the equivalent of doing nothing, which I think would have led to tens of thousands of people dying.

  • The third possibility is to challenge the constitutionality of the War Powers Resolution, which Senator McCain was urging, which I think would have created a constitutional crisis at a moment where the real battle was saving thousands of civilian lives.

The choice that we applied was we don't challenge the constitutionality of this statute, we read the statute in light of its precedents, we find that this doesn't rise to the level of hostilities as in other cases.

I looked very carefully. This was something like the seventh or eighth lowest amount of use of violence. The other eight cases were also not deemed to be hostilities.

Here's a thing that I should ask you, Jim: What percentage of the ordnance dropped in Kosovo was dropped in Libya by the United States?

JAMES TRAUB: This is like Jeopardy. Do I have a lifeline? I don’t know. What?

HAROLD KOH: Less than 1 percent.

JAMES TRAUB: Even though the number of days is actually fairly similar?

HAROLD KOH: The United States was flying support missions. They set up a no-fly zone in the first 10 days and then they flew support missions, which were finally—

JAMES TRAUB: You mean out of American ordnance that was dropped, not the total amount of ordnance that was dropped by everybody? I see.

HAROLD KOH: Yes.

They established a no-fly zone and then the NATO countries maintained it. The only thing for which additional strikes were used was if command and control was replicated by laptop computers being put on Jeeps and being used to retarget Libyan weapons so they could attack civilians.

So what happened was the NATO mission cleared the skies and the United States was actually basically doing refueling and reconnaissance and surveillance.

My view is if you just chart the percentage of ordnance dropped compared to other situations which were not deemed hostilities, this was well below that. So here's a situation where the mission was limited, the exposure of U.S. soldiers was zero, where the exposure of U.S. ground forces was zero, where the risk of escalation was controlled, and where the military means used was very limited.

That's not Vietnam. In the internal debates, I said, "I'm sorry, the War Powers Resolution is a 'no more Vietnam' statute. It's not a 'let's have many more Rwandas' statute." Congress did not think that it was setting the basis where inaction could lead to the slaughter of tens of thousands of innocent civilians. I just think it was a mistake to read it as such.

My brother is a doctor. At one point, he said, "What's your rationale?"

I said, "Because of this interpretation, tens of thousands of people are alive who would have been dead."

He said, "That's enough for me."

QUESTION: Hi, Professor Koh. My name is Eric Messinger and I'm a law student at New York University.

To the best of my knowledge, your role at the State Department has not had an official successor, and there are also vacancies at the general counsel's office at CIA and Department of Defense [DoD]. The White House counsel has announced that she will be leaving the administration relatively soon.

HAROLD KOH: DoD has been filled.

QUESTIONER: Okay.

And just yesterday, the head of the Office of Legal Counsel also announced that she will be leaving.

HAROLD KOH: She left in December.

QUESTIONER: You're better at the information than I am.

My broader question past the specifics is how important you think it is to have these roles filled; and, I guess more broadly, whether or not you feel that you were satisfied with the institutional structure that exists right now for interagency legal consultation, and especially for ensuring that the president is getting the best legal advice possible from the various legal advisors who play a key role in national security decisions?

HAROLD KOH: With everyone there I think he is getting the best. I don't think he is getting everything he could get because of these vacancies you have described and his failure to get people confirmed.

But I attended interagency legal meetings where we would have an internal debate and reach a legal position. If there wasn't consensus, we didn't go forward. So various press accounts record cases where I dissented that a matter would have been illegal and it didn't happen, even though other people thought it was legal.

I think it's a tragedy that these positions are not filled. But this shows you something. In the Bush administration, John Yoo, the deputy assistant attorney general for the Office of Legal Counsel, was getting instructions from the vice president's lawyer, and the State Department lawyers and the Defense Department lawyers didn't know about it. That is a breakdown of process.

In this administration, the White House counsel and the National Security Council legal advisor convenes an interagency process where at the table are all these general counsels, who when they're all appointed are politically appointed and confirmed, and they reach a collective decision. I thought it was a pretty good process and it was a kind of internal checks and balances of the kind that we ought to see more of.

I think it's horrible that there's nobody in my job. If I had known that—I left over a year ago. I thought that my successor would be nominated and confirmed within about three or four months.

JAMES TRAUB: Why has it not happened?

HAROLD KOH: I don't really know.

I think there have been several efforts. But they have not yet been able to get a name through the process and even nominated. But once you are, after the breakdown of the nuclear option, etc., some cabinet officials have to be voted individually on the floor after X number of hours of debate. So there's a backlog, as you probably know, of something like 55 confirmed officials in the State Department.

JAMES TRAUB: Including in your former job, the assistant secretary for democracy, human rights, and labor. He has been waiting for seven or eight months now, Tom Malinowski.

HAROLD KOH: Yes, it's true. It's ridiculous. It's very hard to function.

And by the way, I should say, having been confirmed twice, they don't make it easy to want to do these jobs. You know, you give up other things, you take a huge pay cut, you fill out countless forms, you get hassled by everybody. Then people won't confirm you. It takes months to get in, then you get in, then they try to close down the government so you don't have anybody working for you, and then everything you do is second-guessed by people who don't really understand all the circumstances of it.

You know, I served for four years. I thought when I went in I would serve for four years. But as soon as I got back, the first reaction I had was, "Boy, it's so much easier and I'm working so much less hard." This makes a lot of people wonder whether they ought to put in for this.

But, at the end of day, my view is the best people have to still want to do this. I didn't get a chance to serve my country other ways, but I have been a law clerk. Ten years of my life I worked for the U.S. government. This country saved my family, so it's the least I can do. I'd love to spend more time in the government.

QUESTION: Don Simmons.

What's the legal basis for the obligation of our country and Americans to observe international law? Does it have to do with the UN Charter?

HAROLD KOH: First of all, it's a founding credo of the country. The Declaration of Independence says when we dissolve our bonds with our colonial founders, decent respect to the opinions of mankind asks us to state the reasons that impelled the separation. The United States, as a small country, basically got legitimacy in the world by obeying international law and treaties. If you look at a new country now, like South Sudan or East Timor, they all start by proclaiming their fidelity to international law. So that was a founding principle of what we did.

And then, in the early years of the republic, John Marshall ruled on many, many more cases under international law than he did under U.S. law because, frankly, there was very little U.S. federal law and U.S. constitutional law.

As an international matter, we are bound by specific rules in the UN Charter, but also bound by rules of jus cogens (compelling law) and other kinds of more technical legal concepts. So, for example, the United States did not ratify the Genocide Convention for 40 years after we signed it, but I don't think we were legally free to commit genocide in the interim.

Now, Lou Henkin, the great Columbia law professor, I think correctly said most nations obey most rules of international law most of the time. In fact, that has been empirically tested.

The question is: Do they violate it in the big case; and, if so, are they forced to pay a remedy?

But in the U.S. government there is intensive debate over international law. There is somehow a perception that people say, "Oh, forget it." That's not so. There is elaborate discussion, exchanges of memos, debates, very high-quality intellectual argument, of the kind that if people saw it going on they would realize how seriously we are taking legal obligations.

JAMES TRAUB: There are Supreme Court justices who would answer this gentleman's question, I take it, in a very different way, that in fact they would say the United States should not be bound by international law, or should not use international law in the Supreme Court's jurisprudence.

HAROLD KOH: I think that's both illegal and mistaken. I took an oath as a government official three times to uphold the Constitution and laws of the United States of America. Those include treaties of the United States. Those include customary international law rules that are part of our law. I didn't think I had any freedom to ignore those rules.

By the way, if you are not following the law, you're not acting with governmental authority. So that's question number one—are you acting lawfully?—because if you are not acting lawfully, you're not really acting on behalf of your government; you're acting as a rogue actor.

JAMES TRAUB: Harold, thank you so much. This has really been incredibly edifying.

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