In Democratic Individuality, I argued that at a high level of abstraction, modern conservatives, liberals and radicals believe that the best economic, social and political institutions foster each person’s individuality. Their differences are largely empirical or social theoretical. All clash with modern authoritarians. I will take up practical issues such as torture and the lineage of the neocons and link them to larger issues in how we conceive a decent regime, locally and internationally.
Why is supporting local powers/not murdering innocents beyond Harold Koh’s and Greg Stanton’s imaginative universe?
Extrajudicial targeted killings is legal jargon for the US Government’s use of drones to murder people. As an executive, a king (or a President) who murders people claiming them guilty of crimes is rightly named a tyrant…That is why we have a judiciary.
That the American Government does such murders in foreign countries is also aggression against the people of those countries. Neither of these points is morally controversial even with Harold Koh, before he got into government. See here and here.
That it carries out such murders in the absence of any judicial procedure or oversight – even for show like the FISA courts for wiretapping which rubber-stamp FBI requests – is even more startling.
Now apparently Harold Koh thinks drones “deliver justice.” Perhaps he – or his handlers in the White House and CIA – would like to tell us how two 16 year old Americans (Abdulrahman Al-Awlaki and his cousin), along with 8 Yemenis, met “justice” by being blown up at a food stand in rural Yemen.
If the program delivers justice, every male killed being a would-be or in Eric Holder’s word, “imminent” threat to murder Americans, perhaps the program should be less close to the CIA’s vest. In the first Obama administration, “terror Tuesdays” took baseball cards of targets into the White House for meetings of Obama and National Security advisor (torturer and murderer) John Brennan. See here.
But in Tara McKelvey’s article, it seems the CIA is now doing drone strikes alone and not spreading the word around that much, i.e. to the President. “Change we can believe in”: rule of law, judicial oversight – be damned!
Brennan, head of the CIA, is “saint-like” Koh says at the end of the article on the Tuesday meetings – see here – a man Koh would trust as the last one in the room to make such a decision.
Brennan is the last one in the room…
Authority here – who is saying this… – must count for everything. But that this is law, let alone justice though proclaimed by the former dean of Yale Law School, human rights lawyer, and possible future Supreme Court Justice (and who makes dismissive comments toward opponents if the article below is true), is laughable.
Even McKelvey, the writer at Daily Beast, sees the contradiction in Koh’s “argument.” For as Bruce Ackerman says rightly:
“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 adviser at the State Department,” says Bruce Ackerman, a Yale law professor. “To put it gently, targeted killings are not acceptable under international law.”
This is another thought missed by the 216 or so Law Professors- phrases about “government service” do no good here – who misguidedly signed the anti-student, idealizing of Koh petition, a petition used to harass students who had raised appropriate questions at NYU.
Amanda Bass, one of the student organizers of the petition requesting that Koh not teach a human rights course given his passion for drones (prima facie, this seems a fairly mild thought), wrote me a letter about what they are continuing to do:
Many thanks for your message! In terms of further developments on the Koh controversy: for the last three weeks of the semester we staged weekly demonstrations outside of the law school where we distributed flyers about the petition, talked to passersby about our effort, and invited people to sign on in support. That ended last week (which was also the last week of classes for the semester). Next week, I will be speaking about our effort to hold Koh accountable at the Left Forum where I’ve been invited to speak on two panels about drones. I hope this will be an opportunity to further raise awareness about the petition and our efforts to hold a drone program architect publicly accountable. At the beginning of June, we will be mailing the petition and the list of signatures to the NYU Board of Trustees (we will no longer send it to Dean Morrison or to John Sexton given their roles in intimidating students from signing on to our petition) and send out a final update to all signatories and supporters once that happens.
If you have further ideas regarding how we can move forward, please feel free to share them! Many thanks for your solidarity in this effort.
I will forward any suggestions readers make.
Greg Sargent, Harold Koh’s friend, wrote me letters attempting to defend Koh and now responds angrily about drone aggression (see our previous exchange here).
It is interesting that for Greg, the US government remaining at peace, not invading or firing drones but using off-shore balancing, in John Mearsheimer’s phrase, to check IS is something not in the realm of political possibility (actually, this is the point of Obama’s efforts with Iran and, of course, these might yield very important results for deescalating Middle East war).
Far into the electoral/policy establishment and its powerful penumbra (those who dream of being in it, working for the government), the view that war and only war is imaginable as a position is unfortunately very strong, as Greg’s rhetoric shows.
Regretting his support of the second Gulf War, Leslie Gelb, former head of the Council on Foreign Relations, acknowledged “media face-time” as part of his and others’ motivation. Those who called for war got covered on CNN and other mainstream channels (for one month during the run up and in the face of a huge anti-war movement including most academics, 398 commentators called for war, 3, to some extent, opposed it)
The whiff of militarism is strong here, the view that since the United States has such weapons, it must – must – use them…
As a professor who researches about genocide, Greg also says, while backhandedly acknowledging Arab spring, that any aspect of genocide (the pre-civil rights movement American South?) must pretty much be eradicated by massive (American) force, and even that IS is the same as the Nazis…
But probably the Administration can’t take out IS by bombing or with American troops. The US can protect some innocents like the Yezidis from slaughter with bombing and supplies, but a large American “footprint” is both widely understood and hated in the Middle East. In addition, Americans are increasingly unwilling to be killed in further American invasions/aggressions (actually targeting IS for killing American innocents, even though a larger invasion would make no practical sense, harm civilians and be counterproductive, is not, by itself, aggression…). But very likely for targeted operations, the US could use the SEALS or the JSOC (the President’s private army, outside of the military chain of command) rather than drones.
Think of the disposal of Bin Laden as a paradigm, though, of course, the new Seymour Hersh story – Hersh is careful and his sources are good – suggests that that killing was with the cooperation of the Pakistani generals, shooting fish in a barrel, and that the heroic story told (perhaps helping to head off American aggression in Iran) was false not just about torture – the awful CIA/Zero Dark Thirty version – but, sadly, through and through…See “The Killing of Osama Bin Laden” here.
Many Democrats and some conservative Republicans read Hersh’s stories on Abu Ghraib and demanded some accountability (not much, unfortunately; Lynndie England sits in jail while Don Rumsfeld and Dick Cheney live across from each other in suburban Virginia and Dick amazingly gets “media face-time “).
In contrast, published in the London Review of Books (too hot to handle in the United States, as Abu Ghraib was also, for a while), Hersh’s poking holes in the great mission to take out Bin Laden, immortalized in (false) story and American Presidential politics, has been met with silence. The Republican establishment, seeking to out-aggressive the Democrats, does not want this one success of the “war on Terror” tarnished; Rand Paul doesn’t want to take it on – wants to become “Presidential” and sufficiently militarist to be nominated by Koch/Republicans; perhaps some Republicans, awakened by the failure of the Iraq aggression like Representative Walter B. Jones, Jr. of North Carolina – see here– are skeptical. Their views, however, are not covered in the commercial press….
Still, Bin Laden murdered a lot of innocent people and killing him, even not in a real operation, was just (though the way of killing as opposed to capturing/putting on trial was not).
But why don’t the establishment, the commercial media and many policy professors take up the issue of whether Obama’s/CIA’s drone murders do the same? Why are they not demanding evidence about this? (note: if even the Bin Laden caper can be concealed/fabricated – if Hersh is right and he probably is – that most mainstream journalists, politicians, and academics are and remain so credulous is, sadly, obvious).
For the support for these killings, mostly without any information or evidence, is corrupt. The government is like the sun for would be advisors (including would be, Supreme Court justices) and they orbit…
Greg has gotten himself in a corner with crazy, cackling Lindsay Graham, who also went from criticizing torture – not that he would do anything serious to block it – under Bush to being in love with drones (Dr. Strangelove redevivus…)…
Once upon a time, Harold Koh aptly spoke of Bush as “torturer in chief” : a war criminal (Koh was less forthright about aggression in Iraq, an even greater crime). But today, sadly, he has made himself “killer Koh” (the CIA’s term) and an assistant to Obama, “drone murderer in chief.”
According to Mckelvey,
“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 longstanding 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?’
But this last question is also as devastating about drone murderers Koh supports – what evidence is there for any of the particular killings and why is none of it available to the press and public? – as it is about torture (Koh, to his credit, apparently wants some “transparency,” but the view that transparency about CIA “evidence” would help – as opposed to ceasing drone killings as a policy – is false.
The term policy intellectual, whatever the academic statue of earlier contributions, for those who provide rationales to empires engaged in widespread, often illegal and indefensible military actions is sadly a stretch…
Interview With Harold Koh, Obama’s Defender of Drone Strikes
Harold Koh, who once called Bush the “torturer in chief,” has become one of President Obama’s fiercest defenders of aerial drone strikes. He talks to Tara McKelvey.
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 Gen. 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 afterward, 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 adviser 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 [some Taliban, etc. is true, but how good is the “evidence” for this claim?].
Nearly all of this has been done in secrecy. Koh has pushed White House officials to be more forthcoming about the CIA program, as Newsweekreported 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 sometimes simply 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.
“Obama seems to have the same corrupting influence on lawyers that Bush had.”
What is the process for determining whom 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 General 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?
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 the president’s attempt to consolidate power in the executive branch, as well as his decision to authorize harsh interrogation techniques at Guantánamo 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 longstanding 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 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 General 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.”[And this is a famous, widely supported Law Professor…]
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 General 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 Memorial 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 [is someone who denies his own contradictions, as expressed even in this article, an “ideal” spokesman?] for one of the administration’s most controversial policies.
Here is Greg Sargent’s reply to my last letter (here), one full of invective but not much evidence or argument:
Wednesday, May 13, 2015 9:41 AM
“It is not true that these “targeted” killings from half way around the world, on modest intelligence, are often of leaders of enemy organizations” — Evidently you don’t know the people who are planning the drone strikes because that is precisely what they say they are doing. What would you prefer? All out war? Letting ISIS and Al Qaeda take over the Middle East and spread terror around the world? [what I said was that the US sometimes, fairly rarely gets such figures but gets quite a lot of other people…]
“Your talk of war here needs a colder eye”… [I had made the point that invading Iraq for a third time wasn’t bright…] — If the war with ISIS isn’t war [that IS is murdering Americans and others is true and is certainly war; I was referring to whether the US should invade, apparently an enthusiasm of Greg’s], what is it?
“No one else, looking at the United States – except perhaps interested parties in the ISI (Pakistani intelligence) and other government organizations – sees drones positively…” — You are quite wrong about that. A lot of Congressmen and Congresswomen and Senators see them positively. [absolutely; my statement was about internationally, not about the kept – seeking war corporation money and embracing militarism or the war complex; bowing to Presidents – in the US] So do a lot of the American people — though probably not the people you ever talk to [I am corresponding with a drone enthusiast…]. And a lot of people in other countries also agree [particularly important military officials with weapons aid from the US…]. I don’t want total war in the Middle East [just a third losing war?], but I am fed up with pacifist responses to mass murderers like the ISIS and Al Qaeda killers [that Greg is “fed up” is also not an argument; since I praised the taking out of Bin Laden and above, the U.S. protecting the Yezidis, it is interesting that anything that disagrees with a very important speaker – oneself – must be labelled/stigmatized instead of answered…] and think they must be defeated.[there is a cliff right in front of the US: boots on the ground, no doubt just as successfully as the first two wars in the Gulf; this is what the US has created, both as an ever more egregious enemy and in terms of, through the waste of many lives, Iraqi and American, deterring who can be mobilized, for the United States, to fight it…]
“Koh chose, as an official, to front for drone policy.” — He was asked his legal opinion on it [no, he volunteered it to Hilary Clinton, Secretary of State; hence the CIA’s enthusiasm and mocking, “Killer Koh” – see here] and he gave it. And he was right [yet there is no argument in any of Greg’s letters for drone policy except that it beats for financial costs, all out invasion]. That isn’t “fronting for drone policy.” It’s forthrightly supporting it. He did so in public. [if there were serious argument here – “we’re not invading”; “drones are accurate”; and some recognition of the counterproductive criminality, likely to be a paradigm for other powers, that concerns people, then it would be worth calling Koh’s support forthright and perhaps even, as the reporter does above, “complex,” but as with Greg, not a chance. Farcically, Koh is the leading, if the McKelvey article is right, sole public defender for the administration of the “legality” of drones]
If you think calling your views “politically correct” is inaccurate, look up what the term means Greg refers to dictionaries/authorities instead of answering arguments…]. Among leftist academics like yourself, it sure fits [the argument I gave is nonpartisan, as much conservative as “leftist”, i.e. emphasizing habeas corpus and the rule of law; Greg is sputtering on behalf of imperial authoritarianism and murder posing as “law”]
Evidently you are incapable of complex argument if you see my views as a Cowboy “good guys” vs. “bad guys” contest [not my words; Greg’s argument for renewed war is without specific analysis of why the US had to withdraw from Iraq the first and second time from positions of greater and greater weakness, and is, so far, implausible; I like Obama, as good a President of the Empire as we are likely to see, especially in his efforts with Iran, but this policy is a crime and counterproductive…]. If you read the Genocide Watch website, you will plainly see that we are just as critical of the US and its human rights violations, including its genocides, as we are of any other country’s.
It’s a waste of my time to answer you [if slurs were arguments, Greg would be accomplished…]. I’ll side with Harold Koh any day.
Dr. Gregory H. Stanton
Research Professor in Genocide Studies and Prevention