Posts Tagged ‘Harold Koh’

Obama’s New Year’s Resolutions for Foreign Policy in 2012

Thursday, January 5th, 2012

The Observer has been trying to get inside President Obama’s head for over two years. Recently, he may have succeeded, or had a very strange dream, in which the following was revealed:

Obama’s 10 New Year’s Resolutions for Foreign Policy in 2012

1. Ok, I will finally try to read through the impenetrable legalese of Philip Alston’s Report to the Human Rights Council on the legality under international law of U.S. drone attacks.

2. Admitting that public international law was not my favorite course in law school—in fact I can’t remember if I even took it—I will accept State Department Legal Adviser Harold Koh’s longstanding offer to lead me in a weekly tutorial on the subject for, as Koh puts it, “as long as it takes for (me) to get it.”

3. I accept the challenge to deliver a speech based on a rewrite of my Nobel Peace Prize acceptance speech in Oslo which includes the themes of “a vision of peace” and “how to get there”.

4. To make my rewrite of the Oslo speech easy for everyone to understand, I will even stop avoiding the use of the words “international law”, which should be easier after (2), if not (1).

5. I will ask Ambassador Koh to explain to me in plain English what some of these European and European-influenced international lawyers keep referring to as “dédoublement fontionnel”, which I think has something to do with the idea that nations should try to build and strengthen international law, instead of just trying to see what they can get away with. I don’t really get the point, but maybe I’ll understand better if it is spelled out in English.

6. I agree that we don’t really want to be giving a lot of money to governments who murder outspoken journalists like Syed Saleem Shahzad. I think Admiral Mullen said something about this. Dexter Filkins made a pretty compelling case that the murder was ordered by the highest officials in the Pakistani military in his New Yorker article on September 19. (Letter From Islamabad: The Journalist and the Spies–The murder of a reporter who exposed Pakistan’s secrets. The New Yorker, September 19, 2011.)

There are even reports that the Pakistani Ambassador to Washington, until recently, fears for his life in Pakistan as a result of “memogate”. But, as Richard Holbrooke used to stress, we have to deal with the Pakistanis, unsavory as that may be. I will agree to cutting U.S. aid to the military there by one half—from $1.3 billion to $650 million. Once they’ve arrested and tried the general(s) allegedly responsible for the order to murder Syed Saleem Shahzad, the other half of the aid will be restored.

7. I will enlist the CIA, with Leon Paneta’s help if necessary, in a secret program aimed at persuading the top civilian and military officials involved in Bush’s torture program to retire. Attorney General Eric Holder has concluded that none of them except a few low-level types should be prosecuted for torture, but if he has new evidence and wants to take up the issue again, I’ll let him. If other parties to the Torture Convention arrest some of these officials while they are traveling abroad, and ask us if it is OK for them to try them themselves, I’ll let the Attorney General make the call.

8. Ok, guys, I will finally issue an executive order that confirms my interpretation of U.S. laws banning torture as banning all kinds of torture, as that term is defined in the U.N. Convention Against Torture.

9. After completing (2) and (1), I will reconsider the position that U.S. citizens may be executed by drones or special commando operations without trial if they have been placed on a special targets list. I don’t really get the point about the fifth amendment language that “no citizen will be deprived of …life..without due process of law” and I don’t see how these guys can be given the right to an attorney, but I will commit to not invoking the “state secrets” doctrine to block further consideration of these issues by the courts.

10. Ok, while I think we already examined our strategy in Afghanistan in 2009, ad nauseum, I promise I will reread Ambassador Karl Eikenberry’s memos from November, 2009, for whatever that’s worth.

The Trenchant Observer

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Drone Attacks and Other “Targeted Killings” — State Department Legal Adviser Invokes International Law Limits

Saturday, September 24th, 2011

On September 19, 2011, Charlie Savage reported in the New York Times that,

The Defense Department’s general counsel, Jeh C. Johnson, has argued that the United States could significantly widen its targeting, officials said. His view, they explained, is that if a group has aligned itself with Al Qaeda against Americans, the United States can take aim at any of its combatants, especially in a country that is unable or unwilling to suppress them.

While late to take a firm possition, State Department lawyers are now “trying to reach out to European allies who think that there is no armed conflict, for legal purposes, outside of Afghanistan, and that the United States has a right to take action elsewhere only in self-defense,” according to an unnamed high official.

The State Department’s top lawyer, Harold H. Koh, has agreed that the armed conflict with Al Qaeda is not limited to the battlefield theater of Afghanistan and adjoining parts of Pakistan. But, officials say, he has also contended that international law imposes additional constraints on the use of force elsewhere. To kill people elsewhere, he has said, the United States must be able to justify the act as necessary for its self-defense — meaning it should focus only on individuals plotting to attack the United States.
–Charlie Savage, “At White House, Weighing Limits of Terror Fight,” New York Times, September 15, 2011

This debate involves much more than a division between the President’s lawyers. For the government’s principal experts on international law are in the State Department, not in the Pentagon. Moreover, it is far from clear that the Judge Advocates General of the Army, Navy and Air Force share the views expressed by the General Counsel of the Pentagon, a civilian appointee whose duties extend far beyond questions of international law. While Koh is also a political appointee, his office is made up of career experts in international law, and he himself is an international lawyer of distinction.

For further details on the debate and the implications of the Pentagon’s position, see

David Cole, “A Secret License to Kill”, NYR Blog, September 19, 2011; and

The Trenchant Observer, “International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World,” July 17, 2011

Roland Paris, “Lethal drones strike at our very heart,” The Globe and Mail, September 14, 2011.

In his article, Savage reports that,

The dispute over limits on the use of lethal force in the region — whether from drone strikes, cruise missiles or commando raids — has divided the State Department and the Pentagon for months, although to date it remains a merely theoretical disagreement.

These differing views on the legality of targeted killings are far from theoretical, however, as the United States has reportedly been engaged in a broad pattern of conducting such targeted killings outside the Afghanistan war theater. Moreover, the fact that targets may be high-level or high-value targets does not dispense with the requirement under international law that such attacks be conducted only in self-defense, and in accordance with the specific requirements of necessity, immediacy and proprtionality that are conditions for the exercise of the right of self-defense.

“Signature Stikes” — War Crimes?

Savage also reports that,

In Pakistan, the United States has struck at Al Qaeda in part through “signature” strikes — those that are aimed at killing clusters of people whose identities are not known, but who are deemed likely members of a militant group based on patterns like training in terrorist camps. The dispute over targeting could affect whether that tactic might someday be used in Yemen and Somalia, too.

–Charlie Savage, “At White House, Weighing Limits of Terror Fight,” New York Times, September 15, 2011

Even if these stikes are considered to be within the Afghanistan war theater, obliterating groups of individuals whose identies are unkwown solely on the basis of some probabalistic algorithim appears to violate not only the international law of self-defense but also the precepts of international humanitarian law (the law of war). If that is the case, they constitute war crimes.

The Stakes: War Without Legal Limits, or International Law Governing the Use of Force

Reports of this debate on the legality under international law of targeted killings should be read in conjunction with unquestioned reports that the United States is actively developing a broad range of new drones for warfare, some as small as bees, and other reports that the United States is engaged in building a number of drone bases throughout a broad swath of countries in Africa, the Middle East, and South Asia.

See The Trenchant Observer, “International Law and the Use of Force: Drones and Real Anarchy Unleashed Upon the World,” July 17, 2011; and

“Craig Whitlock and Greg Miller, “U.S. building secret drone bases in Africa, Arabian Peninsula, officials say,” Washington Post, September 20, 2011.

Connecting the dots, it becomes clear that the fundamental issue the United States faces is whether to seek its future security and that of the world through military means that tear down fundamental norms of international law and the authority of international institutions created to ensure their observance, or rather by acting in concrete ways to uphold and further develop with other countries the international law governing the use of force.

If President Obama wishes to follow the second course, he should listen to the State Department lawyers whose mandate includes both upholding international law and institutions (“dédoublement fontionnel”), and listening carefully to the opinions of international lawyers representing the views of other countries.

All should bear in mind that international law is a collective effort, and not a matter determined by the unilateral views of a single state or a small goup of states.

The Trenchant Observer

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e-mail: observer@trenchantobserver.com


QUOTATION

“La guerre, c’est une chose trop grave pour la confier à des militaires.”

“War is too serious a matter to just be handed over to some military men.”

–Georges Clemenceau