Harold Koh, the State Department's legal advisor, helped set out… (Anja Niedringhaus, Associated…)
WASHINGTON — As dean of Yale Law School, Harold Hongju Koh was among the fiercest critics of President George W. Bush's "war on terror," arguing that his administration had trampled the Constitution and tarnished America's international standing by claiming the power to capture "enemy combatants" abroad and hold them without charges at the prison in Guantanamo Bay, Cuba.
The next administration must "restore the rule of law in the national security arena," end "excessive government secrecy" and set aside the "claims of unfettered executive power," Koh told a House panel in 2008.
But as the State Department's legal advisor in that new administration, Koh helped set out a legal justification for policies that include a ramped-up use of unmanned drones to attack and kill suspected terrorists in Pakistan as well as in Yemen and Somalia, far from the combat zone in Afghanistan. Thousands have died, and the targets have included U.S. citizens who were seen as inspiring attacks against Americans.
Koh, who is preparing to return to Yale as President Obama's first term comes to an end, has become a symbol of national security policies that many feel are not significantly different than those of Obama's predecessor.
Koh has many defenders who say the administration's anti-terrorism policies would have been harsher if he were not there. But the surprising turn has left some liberal critics puzzled. Did Koh change, or is there some "deeper pathology" that causes "top administration lawyers to rubber stamp power grabs?" Bruce Ackerman, another Yale law professor, wrote in a news blog.
Obama's team unquestionably made progress on some fronts. The harsh treatment and even torture of prisoners was ended, and several dozen detainees were repatriated to other countries. But Congress blocked plans to close the Guantanamo prison and to prosecute its remaining detainees before civilian judges and juries.
The rhetoric was toned down as well. Officials no longer speak of a "global war on terror" or "enemy combatants." They talk instead of applying the "rule of law" to cope with new problems.
But Obama's drone policy has caused dismay among many human rights activists. When Koh stepped forward two years ago to offer a legal defense, it had a familiar ring. In wartime and in "response to the horrific 9/11 attacks," the president "may use force consistent with the [nation's] inherent right of self-defense," Koh told the American Society of International Law.
As legal authority for the president's action, he pointed to the congressional authorization for the use of military force adopted just after the Sept. 11 attacks, the same measure Bush's advisors cited as justification for the Guantanamo detentions. "It is the considered view of this administration," Koh said, "that U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war."
Conservative columnists were quick to lampoon Koh for what looked to be an about-face. Where the "old Harold Koh" was outraged by imprisoning suspected terrorists, the new Koh could defend the legality of killing them.
Koh said he heard the same at cocktail hours at conferences of liberals. "I get questions in the following form: 'You're a hypocrite, aren't you?'" he said in a talk to one such group.
Koh declined to comment for this story, but many of his friends and liberal allies were glad to speak up for him. They said it was unfair to blame him for administration policies, and they say he has fought hard within the government for abiding by legal standards and strictly limiting the use of drones.
"I don't see a contradiction between the old Harold and Harold now," said Rosa Brooks, a Georgetown law professor who served as a Pentagon lawyer. "I've seen Harold in action. He was pushing for human rights, for setting legal standards. He's very stubborn."
"He's exactly the kind of person you want in the government," said Elisa Massimino, president of Human Rights First. She agreed the drone policy was "problematic," but said, "Harold is always making the case for complying with international law and the laws of war."
Many of Koh's friends and supporters paused to confide he has a "huge ego" and can be "a real pain" to deal with. But they admire his tenacity and his devotion to human rights law.
Koh, 58, was born in Boston, the child of two Korean natives who lived under Japanese colonial rule and later under a Korean dictatorship. His father was a legal scholar and a diplomat and his mother was a sociologist, and both taught at Yale.