A Response on Harold Koh

I received the following email from a government lawyer who was involved in the drone strike discussions about my post yesterday about Harold Koh's role in those discussions:

I think your characterization of Harold as "obstructionist" is unfair. I often disagreed with him, but I have no doubt that he was endeavoring to put on firm legal grounds activities that he (and many others) perceived to be operating without adequate legal bases. That's a noble cause and a lawyer's duty. And particularly in international law, the line between law and policy is drawn in different places by different people. Did he push his arguments vigorously and occasionally annoyingly? Yes. But calling him "obstructionist" is akin to criticizing Dzokhar Tsarnaev's lawyers for seeking to block the death penalty.

My correspondent's point is well taken (and being a firm opponent of the death penalty, by the way, I wish Tsarnaev's lawyers well in their obstructionism). I don't doubt Koh's sincerity or his earnestness in believing in the positions he urged. But both from innumerable conversations I have had with people about Koh's role inside government and from Chapter 8 of Daniel Klaidman's excellent book, Kill or Capture---which describes in considerable depth the arguments between Koh and his counterpart at the Defense Department---I remain comfortable with what I wrote. Klaidman reports, among other things, that I am not alone in regarding him as such. The Pentagon General Counsel at the time, Jeh Johnson, he writes, regarded Koh "as an ideologue who dressed up his liberal policy preferences in academic legal arguments." I won't fight over the word "obstructionist" but it's certainly fair to say that Koh fought tenaciously to limit the drone program far beyond what other lawyers in the administration believed its lawful limits to be.