War Powers

Thoughts on the Latest Round of Johnson v. Koh

By Jack Goldsmith
Friday, September 16, 2011, 8:43 AM

Charlie Savage has a story about a dispute between DOD General Counsel Jeh Johnson and State Legal Advisor Harold Koh over the scope of the president’s legal authority to target members of al Qaeda-affiliated terrorist groups in Yemen (AQAP) and Somalia (Shabbab).  Savage’s story only sketches the contending arguments.  Johnson appears to take the view that if the group falls under the AUMF (the domestic basis of authority), the President is legally authorized to target all its members in a country unwilling or unable to suppress them (which is the U.N. Charter requirement).  And Koh appears to be arguing that international law imposes an extra condition, namely: the United States can kill a member of an affiliated group outside of Afghanistan only if the act against the individual is an act of self-defense, i.e. the U.S. can target only “individuals plotting to attack the United States.”

Johnson seems to have the better of this legal argument.  If the president is authorized to use force against a terrorist group by Congress, and if the U.N. Charter’s sovereignty concerns are overcome because the nation in question is unwilling or unable to address the group’s threat to the United States, and as long as the United States complies with jus in bello restrictions on targeting (distinction, proportionality, etc.), there is no further legal requirement.  The basis in international law for Koh’s additional individualized self-defense requirement is unclear.  It cannot come from the Charter; self-defense there is concerned with state sovereignty only, not individual rights.  Perhaps Koh thinks it comes from international human rights law.  But applying international human rights law in armed conflict in this manner is not only unwarranted under international law and a fateful step for the U.S. military to take.  It also appears to contradict Congress’s judgment (as interpreted by two administrations, as well as the federal courts) that the president’s military authorities extend to groups affiliated with al Qaeda.

It is hard to assess the debate further without more details.  But Koh’s position does present an interesting tension.  He reads domestic and international legal authorities very narrowly when it comes to using force military against members of terrorist groups that threaten the United States.  But when it comes to the use of force against Libyan troops that presented no threat to the United States, he reads the president’s authority to use force very broadly under both domestic law (unilateral Article II power) and under international law (where the UNSC Resolution authorized force only for purposes of protecting civilians from attack, and not for the regime change that became the administration’s open goal).  It is puzzle why a lawyer for the U.S. government would aggressively stretch international law in one direction to allow the president to kill troops that were part of a group that presented no threat to the United States, but would at the same time aggressively stretch international law in another direction deny the president the discretion to kill troops that are part of a group that presents a significant threat to the United States.  Perhaps the reason is, as Savage suggests, that “State Department lawyers are trying to reach out to European allies.”  Or perhaps there is a unifying theory of human rights protection that would lead Koh to this cluster of positions.  But his legal theory is not remotely compelled by international law.  It seems especially perverse to press this novel requirement as a matter of international law since, as the story suggests, Johnson was not advocating strikes against members of the groups in question, but rather was arguing that the legal authority for the strikes existed.  There might be many prudential and political and diplomatic reasons not to exercise this authority even if it is legally available; but to couch a policy argument as a legal argument, if that is what is going on, disserves the president.

As Savage highlights, the dispute between Johnson and Koh raises the stakes on pending legislation to clarify and broaden the president’s authority to use force.  I am starting to think that the Obama administration, in resisting such legislation, is committing an error akin to the one the Bush administration made.  On issue after issue, the Bush team for ideological reasons resisted going to Congress for fear that it would tie its hands.  This was a bad idea because, when things went bad, the administration had no legal cover or political support.  The Obama team for ideological reasons is resisting going to Congress to get more authority to respond to threatening groups.  But when one of these groups does something harmful to the United States, the administration is going to be hanging out on its own; and the lawyers’ squabbles over the margins of that authority, and the administration’s resistance to accepting those authorities, are going to be politically devastating.

A final point.  The Koh principle that the United States can only attack individuals, and not groups, that threaten the United States is made possible by the fact that the United States possesses extraordinary intelligence capacities.  Here is yet another example – the precision of drones is another – where technological developments that in once sense enhance the United States’ military authority also end up constraining it because once there is capacity to be precise in targeting, the moral or political (and, soon, legal) duty to do so soon follows, regardless of what the law previously required.