The Contradictions of Harold Koh

Those were the dark days before Barack Obama moved into the Oval Office. Whether the issue was the detention of terrorists, the interrogation of terrorists, or the idea that we were even at war with terrorists, one man—John Yoo, formerly of the Justice Department’s Office of Legal Counsel—was held singularly culpable. No one expressed these concerns more vehemently than a former professor of Mr. Yoo’s, Harold Koh, then dean of the Yale Law School.

What exercised Mr. Koh wasn’t merely that Mr. Yoo’s office had sanctioned waterboarding; it was the theory of executive authority behind his war advice. This theory Mr. Koh opposed with vigor, deporting himself in the manner of an Old Testament prophet.

Before the Senate Judiciary Committee in 2005, Mr. Koh spelled out where he believed Mr. Yoo’s logic was taking us. Mr. Yoo, he said, “grossly over-reads the inherent power of the president under the commander-in-chief power in Article II of the Constitution.” He went on to say that “if the president has the sole constitutional authority to sanction torture, and Congress has no power to interfere, it is unclear why the president should not also have unfettered authority to license genocide or other violations of fundamental human rights.”

Mr. Koh added that “If a client asks a lawyer how to break the law and escape liability, the lawyer’s ethical duty is to say no.”

That was then. This is now.

Now Mr. Koh is a legal adviser to Secretary of State Hillary Clinton. Now the same Mr. Koh who assailed Mr. Yoo for his broad view of presidential authority has offered up his own justifications for an expansive executive power. These include the argument that we’re not really engaged in hostilities when we fire at Libya because the Libyans aren’t firing back.

Folks are noticing. An op-ed this summer in the New York Times says it is as if Mr. Koh “has torn off his team jersey, mid-game, and put on the other’s side’s.” A headline at the Volokh Conspiracy blog put it this way: “Is Harold Koh the Left’s John Yoo?”

This is unfair . . . to Mr. Yoo. Whether or not one agrees with him, Mr. Yoo has been consistent in his views—before he served, while he served, and after he served. In sharp contrast, the old Harold Koh would have eviscerated the Harold Koh who now offers ludicrous redefinitions of “war” and “hostilities” so he can get the policy conclusion he wants.

Of course Mr. Koh has plenty of company in the U.S. Department of Rank Opportunism. There’s Vice President Joe Biden, who once declared he would have Mr. Bush impeached if he attacked Iran without congressional approval. There’s Attorney General Eric Holder, who attacked detention without trial at Guantanamo but defends it at Bagram. Nor do we hear much from the Yale Law clinic that, during Dean Koh’s tenure, harassed Mr. Yoo with a lawsuit that is still making its way through the federal courts.

While we’re at it, how about the great moral question? During President Bush’s administration, three known terrorists were waterboarded, provoking much breast-beating. Today President Obama’s drone strikes kill many untargeted people; even with the best of precautions, these must include at least some innocent people.

Surely killing people is worse than waterboarding them. That’s especially true if they are guilty of no more than being in the wrong place at the wrong time. Even for the guilty, where are our suddenly silent ethicists on the uncomfortable question: Are we going for the kill precisely to avoid the legal thicket that Mr. Koh helped create with regard to detention and interrogation?

For trying to define what was and what was not permitted under relevant domestic and international laws, Mr. Yoo’s writings were labeled the “torture memos.” In a March 2010 speech to the American Society of International Law, Mr. Koh did the same with the drone strikes. Should this be remembered as the “execution speech”?

As it happens, drone strikes and other Obama war decisions can be legally and morally justified. The problem, however, is that they are hard to justify based on the principles Mr. Koh so loudly advanced before he joined the Obama administration. The legal contortions Mr. Koh introduces in his defenses today as much as admit that.

It is eminently possible that a war might look one way from Yale and another way from Foggy Bottom. A public servant facing that reality has two honorable choices. If he found himself embracing authority he had once denounced others for defending, he would apologize to them. If he still believed his original positions, he would resign.

An honest man might at least acknowledge the contradiction.

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