Koh Defends Legality of Libyan Intervention

Speaking at Yale Law School yesterday, State Department Legal Advisor Harold Koh ardently defended the Obama administration’s record on human rights and international affairs, including the legality of its intervention in Libya without Congressional approval. He emphasized the Obama administration’s shift in posture toward international institutions, like the International Criminal Court and the Human Rights Council. “We would change the default from hostility to engagement,” Koh said of the administration’s goal.

He emphasized that the American “actions in Libya are legal under international law and domestic law,” highlighting a quote from Sen. John Kerry (D-MA) in which he insisted that the intervention in Libya was not “going to war.” Koh agreed:

KOH: Is a no-fly-zone-plus a war? I don’t think so. I’ve never thought so. I have never thought so. … I would not support an action I thought to be illegal, and this one I believe in my heart to be on the right side of the line.

It’s clear Koh was trying hard to convince the law school audience that not only were the Administration’s actions defensible, but that Koh himself believed them to be legal—and that he wouldn’t support them otherwise. Throughout the talk, Koh repeated that, while it was his job to defend decisions made by the Administration, he would never do so if he thought the decision was not legally permissible. He expressed frustration that people seem to assume he doesn’t believe what he is saying, whether he is opining on the legality of drone strikes, defending indefinite detention, or explaining the Administration’s failure to close Guantanamo. (We haven’t shut the prison camp, he said, “because we can’t do it ourselves. We need help from our allies in Congress and the Courts.”)

Later in the speech, Koh listed the significant differences between the Bush administration and the Obama administration’s approach to what he calls the law of 9/11. One of those differences, Koh said, was that, unlike his predecessor, Obama does not claim the entire war as a battlefield. “We do not call it a Global War on Terror,” Koh said. At the same time, he defended the targeting of al Qaeda operatives, be they in Afghanistan, Pakistan, Yemen, or Somalia. It’s unclear exactly what the difference is between claiming the world as a battlefield and asserting the right to target enemies anywhere in the world.

Koh acknowledged the differences between the Bush and Obama approaches were “subtle,” but said that a Yale Law School audience should be able to distinguish them. While I do think there are significant differences—and that liberals are far too quick to lump the two administrations together—on this one point, apparently, my subtlety detector fails the Yale Law School test.