Harold Koh: President Obama's Drones Defender-in-Chief


The Daily Beast recently published Tara McKelvey's interview with Harold Koh, the human rights lawyer and former dean of Yale Law School who has since become a legal advisor for the Obama administration, specializing in justifying the exercise of unrestrained executive authority.  

While the interview portion of the article is negligible – out of three pages, Koh's remarks consist of just seven short sentences – the portrait McKelvey paints of Koh is of a rather unpersonable, prickly man. According to retired General James Cartwright, Koh was "hated" in the opening months of the Obama administration. Cartwright also claims that Koh described drone strikes as "extrajudicial killings" in some of these early meetings, something that Koh denies ever saying.

Of course, Koh's personality, unpleasant or not, is less important than his significant changes of heart (although the interview quotes Koh himself saying "I have never changed my mind") on national security issues. In 2002, Koh referred to George Bush as the "torturer in chief" and expressed concerns over the targeted killings carried out under the Bush administration. By contrast, in 2012, Koh answered the question: "How do we deliver justice to the enemy?" with the flippant: "I think there are different ways. It can be delivered through trials. Drones also deliver." 

Providing legal justification for drone executions seem to be one of Koh's recurring duties. In 2010, he defended them, saying, "Our procedures and practices for identifying lawful targets are extremely robust, and advanced technologies have helped to make our targeting even more precise." The death and disfigurement of civilians that seem to accompany every drone strike don't seem to figure into Koh's precise targeting technologies, much to the anguish of the drone policy's victims.

In the context of the Obama presidency, Koh's sudden conversion to assassination advocacy is somewhat less surprising, however. Despite the rhetoric of the campaign trail (and the oft-repeated assurances of Obama's remaining fans), the Obama administration's record on human rights has more often than not been a continuation of the policies favored by its predecessor (not exactly surprising, given how many members of the Obama national security team are Bush-era appointees). Despite promises to close Guantanamo, America's most famous prison camp remains open. Despite grandiose claims of ending torture, loopholes in Obama's orders kept torture a viable policy, and with the signing of the 2012 NDAA, it was reauthorized under the auspices of "enhanced interrogation."

The Obama administration has refused to investigate the war crimes of Bush, saying "it is our intention to assure those who carried out their duties relying in good faith upon legal advice from the Department of Justice, that they will not be subject to prosecution." In other words, if you were just following orders, don't worry, you won't be prosecuted for torturing.

Obama has also declined to release further photo documentation of torture by American forces, interceding to reverse a Pentagon decision to make public hundreds of images of detainee abuse.  Obama described the Abu Ghraib abuse photos as "painful,"a curiously elastic use of the word in the context of a discussion on torture.

In some areas, such as the prosecution of whistleblowers, the current administration is exceeding its predecessor in the zeal with which it defends the excesses of the national security state. From the attempted prosecution of an NSA agent leaking information on unauthorized government surveillance techniques to the recent prosecution of former CIA agent John Kiriakou for revealing information related to the abuse of prisoners, the Obama administration has made it very clear it has little tolerance for anyone taking campaign promises of transparency seriously. The Espionage Act has been used as the principle tool for silencing whistleblowers - six times so far this administration. Prior to Obama's administration, the act had only been used three times in the nation's history.

So what are we to conclude from all this? Certainly, not that the Obama administration is uniquely awful in its policies. Even disregarding the perverse willingness of the previous administration to make its crimes publicly known, torture is nothing new for America; the "water cure" was practiced in the Philippines long before it was applied to captured Afghans. Nor is the trite phrase "power corrupts" useful as an analysis, especially if we hope to even begin to affect change.  

What we must recognize is that on a structural level, our government and its obsession with secrecy engenders these abuses. No matter who sits in the Oval Office, without massive outcry and organized resistance to the status quo, nothing will change, no matter who is voted in or out.