Shortly after Yale Law professor Harold Koh was named the State Department’s top lawyer, a source sent me a snickering note noting that Koh had deemed the 2003 U.S. invasion of Iraq illegal, and that therefore by Koh’s definition his new boss, Secretary of State Hillary Clinton, had potentially supported a massive war crime. Koh had also taken other firm positions against expansive wartime presidential power in the name of national security, including his zero-tolerance position on torture, not only on humanitarian but also legal grounds, leading conservatives to mock him as a pointy-headed leftist.
But inside the Obama administration, Koh has played a very different role, defending a series of legally questionable positions–including the expansive use of U.S. drone strikes against suspected terrorists and the Navy SEAL raid that amounted, more or less, to an execution of Osama bin Laden. And on Tuesday, Koh again found himself in an awkward position, this time by defending the legal grounds for the Obama administration’s decision not to seek explicit Congressional support for its intervention in Libya. Testifying before the Senate Foreign Relations Committee, Koh called the word “hostilities,” a trigger for the Congressional War Powers Act, an “ambiguous legal term of art” that doesn’t apply in the case of Libya. (Koh reportedly argued this case during private administration deliberations on Libya, prevailing against the views of other top Obama lawyers.) As former Bush White House lawyer Jack Goldsmith has noted, this is a position that would seem to exist at least in tension with Koh’s past scholarship on the presidential obligation to consult meaningfully with Congress before engaging in wars.
In an NPR segment Tuesday morning, Koh acknowledged such critics: “The longer I serve in government, I get questions of the following form: ‘You’re a hypocrite, aren’t you?’” he said. Hypocrite is a strong word. It may simply be that it’s easier to mount a legally pure policy critique from the outside than it is to actually fashion legally pure policy from the inside. Koh’s views aside, that difference, from detainee policy to electronic surveillance, has been a defining theme of Barack Obama’s national security policy to date.