International Law

Ken Anderson on Harold Koh

By Benjamin Wittes
Saturday, May 7, 2011, 7:29 AM

Over at the Volokh Conspiracy, Lawfare book review editor Ken Anderson makes this point about State Department Legal Adviser Harold Koh's absence from the current public discussions of the legality of the Bin Laden operation:

has the administration regained its composure?  No — and it won’t manage to do so until someone with Harold Koh’s stature starts speaking out, and pointing out that the legal standards are precisely what he laid out in his speech a year ago, and none of it represents anything other than long-held US legal positions.

I think there is also an urgent need for senior military lawyers, ones who are in charge of interpreting the nitty-gritty legal circumstances of surrender, to explain to the public why surrender is not just, “white flag, done.”  In the comments to an earlier post of mine at Opinio Juris,  two commenters — one a former Navy JAG with a distinguished career, and the other author of a well-regarded treatise on targeting law — each weigh in on what surrender means in practical legal terms.  They manage to say more than all the senior administration officials put together  - merely in the comments to a blog post.


I understand why the administration was behind on this in the first hours after President Obama’s speech; I cannot understand why it is allowing the legal narrative to be shaped by others at this date. John Bellinger has said more to defend the administration on the legality of these operations, and far more persuasively, than anyone in the administration to date.

It is past time for Harold Koh to put some legal order onto the administration’s international law chaos. Secretary Clinton, call your lawyer.

The man has a point. Yesterday, State Department spokesman Mark C. Toner couldn't even be troubled, in response to a direct question, to say that the Bin Laden operation complied with international law:

QUESTION: Mark, on the bin Ladin operation, two UN human rights experts are asking the U.S. to present supporting facts that the U.S. did or did not adhere to international standards with regards to human rights. Did the U.S. consider this aspect of this operation?

MR. TONER: In terms of adherence to international --

QUESTION: -- whether it was adherence to international human rights laws.

MR. TONER: I think I’ve said – I’m not going to get into a legal discussion from the podium, but we’ve talked about these operations in the past and the legal justification for them. And again, this was a man who posed a – an individual who posed a threat, an imminent threat to American lives – and indeed, I don’t even want to stop there – to the lives of innocent civilians in Europe and Asia and elsewhere around the globe, and Africa certainly. And we carried out an operation that has brought him to justice.

QUESTION: But did it abide by international laws?

MR. TONER: Again, I’m not going to get into a discussion here. That’s – that can be debated elsewhere.

Debated elsewhere? That doesn't seem to me the right position for the U.S. Department of State.