You've heard it before, be it from defenders of corrupt churches or wicked governments: It's not the institutions that are the problem, it's not the tremendous power we grant the people that control them, it's the few bad apples we sometimes allow to be placed in them. Replace the bad reactionary elements with liberal-minded humanitarians and one not need entertain silly talk of institutional reform or, daresay, abolition.
To proponents of this admittedly popular school of thought, allow me to introduce you to a man by the name of Harold Koh.
As dean of the Yale Law School, Koh built up a reputation as one of the fiercest legal critics of the Bush administration and the executive branch's centralization of power. In a 2008 speech on “Repairing Our Human Rights Reputation,” Koh railed against the imperial presidency and the “horror of Abu Ghraib,” “[o]ur tolerance of torture and cruel treatment for detainees” and the Magna Carta-shredding practice of “indefinite detention without trial.”
A fawning profile of Koh published around that time in the Yale Daily News noted his status as a “liberal lion” that would much-missed should he ever leave campus. “Either the Democrats will lose and Yale will keep Harold,” said law professor Kenji Yoshino, “or the Democrats will win and Yale will loan him to the country.”
Once a staunch critic of the imperial presidency, Koh, as the State Department's top legal adviser, now works for an administration that has undeniably expanded the power of the executive and institutionalized the very policies he once forcefully railed against, from the extra-judicial detention and abuse of detainees at CIA black sites in Somalia – and, one can safely assume, elsewhere – to the indefinite imprisonment without trial of dozens of men at Guantanamo Bay.
Rather than take the P.J. Crowley route and resign in protest of policies he once labeled repellent, Koh has soldiered on with an almost admirable enthusiasm, fulfilling the same role John Yoo did for George W. Bush with tortured legal arguments for every presidential whim. While U.S. law forbids extra-judicial assassinations, Koh – the Obama administration's go-to guy for legal justifications for that which it is already doing – maintains the ban does not apply to the firing of hellfire missiles from Predator drones in Pakistan and the use of cluster bombs in Yemen as such strikes are in strict “self-defense” and officials also work to ensure “collateral damage” – dead mothers and father, lifeless sons and daughters – “is kept to a minimum.”
Forty-one innocent Yemeni civilians, including 14 women and 21 children, were killed in but one such targeted strike, according to Amnesty International, which has called for those responsible for the “unlawful killings” to be “brought to justice.” The man who once delivered lectures on restoring America's human rights image in the world may, like Bush officials who signed off on torture, not even be able to travel it once he leaves office.
Most famously, Koh, who used to believe that “nothing” in the War Powers Resolution “authorizes the President to commit armed forces overseas into actual or imminent hostilities” – meaning not just a skirmish, but the mere threat one could break out – now argues that the war in Libya to which the president unilaterally committed his nation does not even rise to the status of said “hostilities.” That argument, should it be afforded the term, would perhaps fly if U.S. involvement in Libya were limited to President Obama drunk-dialing Colonel Ghaddafi at 4am and leaving nasty voicemails, as former partners are wont to do, and not ordering the dropping of heavy munitions on homes containing Ghaddafi's sleeping grandchildren.
Koh's seeming transformation has confounded his former colleagues in academia, though his time in both the Reagan and Clinton administrations hinted at his willingness to be a political action. Many of his friends “are mystified and disheartened to see their hero engaging in legalistic 'word play,'” author Paul Starobin notes in a New York Times Op-Ed published over the weekend. Mary Ellen O'Connel, a law professor at Notre Dame, captured many of their feelings when she bluntly asked, “Where is the Harold Koh I worked with to ensure that international law, human rights and the Constitution were honored during the Bush years?”
For his part, Koh denies there's any metamorphosis. In a defensive speech earlier this summer before the American Constitution Society, Koh rejected claims he had “caved to political pressure” on topics like Libya and extra-judicial killings, attributing suggestions he is a hypocrite to “obsessive” bloggers incapable of coming to terms with the fact that his views on presidential power had merely evolved over time – beginning in earnest, coincidentally, right after he joined the Obama administration.
“[I]f you hear me say something,” said a defiant Koh, “you can be absolutely sure that I believe it.”
There's no reason to doubt him. It's awful hard, after all, to get up every morning thinking what your doing is mere sophistry in the service of power. It's doubtful even Dick Cheney, after dining on the flesh of newborn babies from the developing world, looks in the mirror and says: “Damn, I'm evil.” With a tip of the hat to Upton Sinclair, it's also hard for a man to understand the error of his ways when his salary depends on his not understanding it.
Power and the privileges and prestige it offers have a strange way of changing even the most committed do-gooder.
Thus, we witness the spectacle of Koh, desperately holding the shards of his credibility, opining that word “hostilities” is “ambiguous,” as if there's anything nuanced about firing 112 Tomahawk cruise missiles at a country in a span of 24 hours. Rather than a conscious act of selling out, Koh says those who miss the “Old Harold” – the one that critiqued the expansion of executive power, as opposed to the one that provides legalistic excuses for it – need to understand his position has changed.
“I am changing roles,” he admits. “People's lives have seasons.” Indeed, they do. And this season Koh's playing for a new team where, instead of critiquing the institutions of power, he serves them. And as his friend and president of the Boston Red Sox, Larry Lucchino, notes, “he is exceptionally loyal to institutions.”
And therein lies the problem. Whether you fill the halls of power with people like John Yoo or Harold Koh, the result is the same: the powerful – also known as the people with the most money and, in the case of the military, guns – usually get what they want in the U.S. political system. Folks like Yoo and Koh, while no less culpable for their actions, are as replaceable as George W. Bush and Barack Obama. The problem isn't the people, it's the power we allow them to possess. It doesn't matter if you elect devils or saints, because when it comes to money and power, even saints are corruptible – and the same powerful institutions, from Wall Street to the Pentagon, prosper.
As one observer smartly remarked in the summer of 2008, whichever party holds the reigns of power, “its leaders will have their own reasons why they cannot change course immediately.” They will come up with the excuses as to why Gitmo will have to stay open; why the president will have to continue amassing power; why those accused of actions of terrorism can't be provided due process. That's why, he noted, “we the people cannot leave it to the politicians. For the core concern of politicians is politics, not principle.”
That observer, of course, was Harold Koh.
The problem, as history amply demonstrates, isn't the party affiliation of presidents and their legal enablers, it's the power they possess. The U.S. government is the most powerful political institution in the world, with those who run it given the awesome power to decide who gets a trial and who does not; who lives and who dies; whether we're at war or at peace. Putting anyone in that position is asking too much of someone we must not forget is still a fallible human being like you or I susceptible to the same corrupting influences of power and vanity.
Harold Koh, like many a crusading reformer before him, used to say the same thing. But now he has power.