From Harold Koh’s speech to the Oxford Union yesterday:
A third critical difference between this Administration and its predecessor is the Obama Administration’s determination not to address Al Qaeda and the Taliban solely through the tools of war. . . . [O]ur longer term objective must be what Secretary Clinton called a “smart power” approach. . . . Because force makes up only part of a much broader “smart power” approach, this Administration has not rejected Law Enforcement tools in favor of exclusive use of tools of war. Instead, it has combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda. Thus, if the United States should encounter an Al Qaeda leader like Obama bin Laden in a remote part of Afghanistan, a law of war approach might be appropriate; but if it should find him in London or New York, a law enforcement approach would obviously be more fitting.
I was not aware that the Bush administration had been committed to confronting Al Qaeda and the Taliban “solely through tools of war.” Nor was I aware that it had “rejected law enforcement tools in favor of exclusive use of tools of war.” In fact, I rather thought that the Bush Administration—which prosecuted in civilian court nearly everyone it arrested domestically—had, as Koh proudly declared of the Obama Administration, “combined a Law of War approach with Law Enforcement and other approaches to bring all available tools to bear against Al Qaeda.”