Detention: Law of

Harold Koh on What Would Al Gore Do?

By Benjamin Wittes
Thursday, May 9, 2013, 12:00 PM

From Harold Koh’s speech to the Oxford Union the other day:

Suppose we are back at Sept 18, 2001, and Congress has just passed the AUMF against Al Qaeda. Suppose the President –let’s assume it for the sake of argument that it was the winner of the popular vote, Al Gore--gives a speech where he says:

'We just have been attacked in the worst attack on our soil since Pearl Harbor. Some 3000 innocent people were killed, simply for going to work one day, in what all must acknowledge was an obscene human rights violation. We must respond firmly and lawfully, consistent with our values. As of today, we are at war with Al Qaeda, the Taliban and associated forces. Our aim must be to defeat Al Qaeda and to prevent it from proliferating. So here is what we will not do, and here is what we must do.

We will not do anything foolish, illegal or inconsistent with American values. That means we will not invade Iraq. We will not torture anyone. We will not open offshore prison camps like Guantanamo. We will not create military commissions, because our existing civilian and military courts can do the job. We will not violate foreign sovereignty or international law. We will not claim that we are in a Global War on Terror. We are in a particular battle with a particular foe—Al Qaeda—that we hope to defeat in time.

I hope you will agree that that speech would have received a 100% approval rating. But that, sadly, was the road not taken.


I have one question about this Platonic Al Gore speech: What exactly would this President Gore have done with the tens of thousands of detainees he would capture in this "battle with a particular foe . . . that we hope to defeat in time"? Would he have (a) not captured them in the first instance? (b) Attempted to process them all through the criminal justice system, though the material support law at the time did not reach foreigners giving support to foreign terrorist groups abroad, the volume of captures would have flooded the criminal justice system, and the evidence supporting many captures was simply inadequate to support a criminal case? (c) held them in theater? or (d) brought them to detention facilities domestically? Koh does not say. And until he does, it's hard to evaluate his "road not taken"---which might not lead to a good place or might be very different (at least with respect to detention) from the road the Bush administration took.