Ceci n’est pas une guerre

Chase Madar · The Lawyers and Libya

If anyone should have been able to put human rights at the centre of US foreign policy, it was Harold Hongju Koh. The dean of Yale Law School and a prominent critic of Bush-Cheney lawlessness, his reputation was clinched by a chorus of crackpot accusations that he wanted to smuggle Sharia law into the US courts. Surely this was a man to undo the previous administration’s damage to American moral prestige; as legal adviser to the State Department, Koh would restore decency and goodness to US foreign policy.

Instead, he has been busily justifying Bush-era national security policies. The Obama administration has failed to close the military courts at Guantánamo, where it has tried and convicted a child soldier of newly invented ‘war crimes’; it has perpetuated indefinite detention and launched a legal assault on WikiLeaks. Perhaps most significantly, it has radically intensified drone attacks in Afghanistan, Pakistan, Yemen and Somalia. (Throughout the campaign trail John McCain condemned the expansion of the Afghan War into Pakistan as reckless and foolhardy.) Koh has dutifully produced legal rationales for the drone strikes, supplying the necessary law component to a national security ‘strategy’ of open-ended global counter-insurgency. None of this has provoked much criticism beyond the marginal antiwar left and libertarian right, and Koh’s justifications have been largely ignored by pundits once outraged by similar Bush-Cheney edicts.

But Koh’s latest legal counsel has been too much even for his former colleagues to swallow. The War Powers Act of 1973 requires presidents to obtain approval from Congress for military action lasting more than 60 days. If that approval isn’t given, the executive has an additional 30 days to cease hostilities. As the Nato campaign in Libya limped past the 90-day mark, Koh creatively argued that it does not quite amount to ‘hostilities’ because no American boots are on the ground – only unmanned drones, overflying fighter jets and offshore missiles. Never mind that American soldiers involved in the conflict are already drawing extra ‘imminent danger pay’: properly viewed, Koh says, this war is not a war.

Obama chose to follow Koh’s rationale over the judgment of other administration lawyers, angering Congress (the House of Representatives today voted overwhelmingly against further authorisation of the Libya War), and triggering a volley of angry op-eds from the previously somnolent law professoriate. Koh’s casuistry is all the more dismaying because before joining the Obama administration he strongly criticised presidential overreach in making war.

But it would be a mistake to see Koh’s recent pronouncements as deviating from any previously held political position. He has expressed his admiration for the late Walt Rostow, a family friend, leading development economist and, as national security adviser to Kennedy and Johnson, influential advocate for carpetbombing North Vietnam. Koh was opposed to the Iraq war not because of its political folly or the massive civilian casualties, but because it wasn’t legal. If the US could have finagled a UN Security Council resolution to authorise the invasion, the thinking goes, the disaster would somehow have been redeemed by its lawfulness. To Koh’s cast of mind, what matters most is a conspicuous respect for the law: great effort must always be taken to fashion a legal rationale that can pass the straight-face test. This sensibility turns out to be marvellously flexible when put in the service of state power. ‘No more ignoring the law when it’s inconvenient,’ Obama liked to say on the campaign trail. Exactly: don’t flout the law à la Bush, twist it assiduously while making noises about human rights and hope no one will notice.

Koh’s pliability is less a perversion of human rights law than a vivid illustration of the doctrine’s limits. Human rights law derives much of its legitimacy from being militantly apolitical, and within its sphere it can and does accomplish much good. But when it comes to larger political questions, especially whether or not to wage war, the doctrine offers little guidance. Not that this has stopped human rights grandees from using their discipline to prop up the interventionist ‘responsibility to protect’, currently in diplomatic vogue. The leadership of Human Rights Watch, for instance, heartily endorsed the Libya War and demanded that the same type of ‘unified and decisive action’ be taken in Côte d’Ivoire. The mystical belief in an immaculate war that strictly obeys human rights law and all jus in bello restrictions is a creed whose humanitarian adherents are, time and again, cruelly astonished by the inevitable carnage that ensues. International law is important, but it should never crowd out discussion of interests, politics, ethics and – above all – consequences.


  • 25 June 2011 at 10:42am
    Phil Edwards says:
    don’t flout the law à la Bush, twist it assiduously

    This is through the looking glass. The Bush administration seldom if ever did anything as blatant as flout the law. What Bush's people did was precisely to twist the law into the shape they wanted - remember the Yoo memorandum? Even the legal black hole of Guantánamo Bay was quite tightly justified in terms of which laws didn't apply there and why.

    This, of course, doesn't run against the argument of your post, but makes it even more depressing.

  • 28 June 2011 at 8:26pm
    ursid says:
    "The War Powers Act of 1973 requires presidents to obtain approval from Congress for military action lasting more than 60 days. If that approval isn’t given, the executive has an additional 30 days to cease hostilities."

    That isn't precisely true. Under the WPR, the President can insert the military into hostilities ONLY if the Congress declares war or otherwise pre-approves the action, OR in response to an attack on the US. Nowhere does the Resolution (or the Constitution) authorize the President to use the military in foreign hostilities for ANY length of time for arbitrary reasons. The 60-90 day grace period provision only applies if the President has committed troops in response to an attack.

    Also, the WPR is clear that committing the US military covers much more than just sending troops into direct combat. Providing advisors, "co-ordinating" with foreign forces, or otherwise supporting or supplying them count, too.

    Judge for yourself. You can read the actual text of the WPR here (at the website cited by the Law Library of Congress):

    By any commonsense reading the the WPR, and from all appearances based on news reports from well-respected agencies, Mr. Obama has been acting in violation of the law since the very beginning of our involvement in Libya. If the Congress had any courage or integrity, they would be impeaching the President at this very moment.

    At very least, I would hope that commentators would quit implying that the US Libyan involvement was ever "OK" under the WPR, and that Mr. Obama is simply out of time. This action was always against the law, as was any similar action by any previous President since the WPR was enacted. The fact that those Presidents may have flouted the law with impunity and escaped punishment does not excuse Mr. Obama on this occasion. Our Congress has needed to reassert itself and its constitutional powers for a long time. If they can finally bring themselves to do so now, wonderful. I'm not holding my breath.