Tuesday, August 09, 2011

It's not the powerful people, it's the institutions of power

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.


  1. Anonymous8:21 AM

    Or maybe he's just a bad guy, his colleagues are chumps, and he's executing the policies of his boss.

    There are good people in public office, like Eric Schneiderman. They do useful things. It's not reasonable to shit on them because Harold Koh is a power hungry con artist.

  2. "They do useful things." Yes, like provide a guise of reform for a criminal justice system that is 99.99999 percent the same as the one his predecessor oversaw.

  3. when I was in law school I worked as a prosecutor in misdemeanor cases. the first time I convicted a guy I felt kind of bad, like I had kicked a guy in the face. I noticed that most of the people I prosecuted were poor, and that bothered me.

    after a while, however, convicting people didn't bother me at all. cases became games that I wanted to win, and the power that I had felt good. I was even able to rationalize prosecuting drug charges by telling myself "it's just my job."

    by the end up my stint, I was a far cry from what I had imagined I'd be. before the job started I had visions of heroically refusing to prosecute drug charges. but the structure of an institution like that only allows for a narrow range of thought and behavior.

    my rambling anecdote is my way of saying: you're right about institutions. now, what do we do about them?

  4. There are good people in public office, like Eric Schneiderman. They do useful things.

    Apparently you missed the point. "Good" people in public office are serving the same needs of that office that a "bad" person would. It is not the person, it is the institution he services.

  5. Great post but I think you mean Upton Sinclair.

  6. Hey, at least I got the Sinclair part right.

  7. Anonymous12:39 PM

    There are good people in public office, like Eric Schneiderman


  8. @JPS3,

    On '...what do we do...'

    Prosecuting the bad deeds of individuals would be a start. But I'm losing hope that will ever happen.

  9. Robb:

    Prosecuting the bad deeds of individuals would be a start. But I'm losing hope that will ever happen.

    Charlie didn't spell this out, but it seems implicit in this post that this is not at all the solution, at least not given current institutions. We have a "justice" system allegedly empowered to do this yet it has demonstrated over centuries that it is only used in the service of large concentrations of power against those who have none (see: The Drug War). I would be much more inclined to advocate jury nullification from the ground up rather than a half-baked inquisition that will at best be using the legal system to give one subset of the ruling class more power relative to some other subset.

  10. Robb,

    When the actual victims prosecute their actual oppressors, it's called an uprising.

    The law frowns on uprisings for a reason.

  11. jcapan3:18 PM

    "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."

    Surprisingly, that almost borders on sympathy. And perhaps of the young and idealistic, of the freshly printed diplomas and years of internalization of establishment mores, it has merit. As for anyone out of intellectual diapers, they know the only guaranteed method of preserving the institution is by joining its ranks. It cannot be changed from within.

  12. What's this about Timex Sinclair?

  13. Anonymous9:40 PM

    "If men are good, you don't need government; if men are evil or ambivalent, you don't dare have one." - Robert LeFevre

  14. Anonymous6:19 PM

    Yes, like provide a guise of reform for a criminal justice system that is 99.99999 percent the same as the one his predecessor oversaw.

    Tell that to the people whose homes are seized by the bank, or not, depending on whether they have good representation. It's easy to adopt nihilism, but it's also lazy. It's also cheap and lame to excuse someone like Koh by saying "oh poor Koh he has to do what he's doing". Nope. He's just a weak-minded moral leper. They're out there, and they cluster around power and money. But it doesn't have to be that way. Will it change with elections? No, that time is over, we're headed for a much darker set of choices.

    Nihilistically saying that nothing can change within institutions, though, and it was always thus, is an argument that is as historically inaccurate as it is cynical.

  15. Anonymous,

    You know what's fucking easy? Calling someone who disagrees with your milquetoast reformism a cynical "nihilist," instead of say -- and I'm going to get on my soapbox -- a person of principle who doesn't get a hard-on because some media-savvy attorney general who spends 9/10 of his day working to imprison people for non-violent offenses makes a lot of noise about Standing Up to the Banks, all the while steadfastly upholding a system that's led New York to have one of the highest incarceration rates in the world.

    Using the Google, I couldn't find a case of a single foreclosure stopped by the sainted Eric Schneiderman, sadly. I did, however, find that he wants to further rollback medical privacy -- in the name of fighting the evils of drug abuse, of course: http://www.ericschneiderman.com/news/latest?id=0222

    But hey, keep pretending a guy backed by Andrew Cuomo and Bill Clinton is Fighting the System. Obviously the carefully calculated appeals to well-off liberals are working. I'm betting the poor and propertyless, however, are less impressed by a media-savvy prosecutor.

    As for Koh, he may be a "weak-minded moral leper," but he's exactly the kind of person that thrives in the halls of power -- and exactly the kind of person that 99/100 people given the kind of power and access he has would become. Which, of course, was the point of the piece: that instead of hoping that some saint will be elected and Do The Right Thing, we should do something about the institutions of power themselves -- institutions that, 99/100, will not be staffed with such saints.

    Nobody should have the power to order an extrajudicial assassination or unilaterally start a war. Not even Eric Schneiderman.

  16. Nihilistically saying that nothing can change within institutions, though, and it was always thus, is an argument that is as historically inaccurate as it is cynical.

    Alright, I'm coming back for seconds. You are arguing against an argument no one has actually made. Things can change within institutions, but only if they face pressure from independent movements that are dedicated to more than just electing more and better politicians. The civil rights movement forced institutional change precisely because it wasn't merely a Democratic get-out-the-vote operation. People took to the streets and demanded change; they didn't throw their time and energy toward primary challenges.

    Politicians, being opportunists, respond to outside pressure, to people and social movements that question and challenge the basis of their power -- and that make them fear they might lose it unless they respond. An occasional angelic reformer might get in public office -- I don't preclude the possibility -- but they are the exceptions, not the rule. I choose to judge the U.S. political system by the rules that govern it, not the but-this-one-guy's-not-evil-I-swear! exceptions.

  17. When a State and its Legal apparatus upholds criminal acts by officials and exacerbates wealth inequality through undemocratic policy, it violates the social contract and loses its right to govern.

    The contemporary nation-state is a front for "globalist" cartels(Central Banks, Hedge Funds, Energy Corps, and War Contractors) who loot resources on a worldwide scale for the benefit of an elect few. Law, be it national or international, is willing to overlook financial fraud, torture, aggressive war, and ecological devastation if it serves the power of these privileged cartels.

    Valery heralded "The Age of a Finite World" in 1931. Since then wars and wealth disparity have increased globally. It took a half century for the spoliation to return home to nest in nations whose power reaped the greatest rewards. The end, in every sense, of this age necessitates an effort by power to extract more rights and resources from everyone to maintain its "growth".

    The National Security State, along with its Central Banking Heart, does not plan on going out with a whimper. It needs blood. The parasite tells the host it's a parasite, i.e. Power tells those it loots to sacrifice more...

    I should stop drinking Bhang.
    Nevertheless, I stand behind, not hiding, everything above. Mr. Davis is correct about institutions of power being an insular affair amongst elites.

    But didn't James Madison establish the insularity of powers in the Constitution?

    Godel read the US Constitution and was disturbed because he thought, logically, it contained contradictions that allow for democracy to deteriorate into tyranny--But he didn't marry well.(laughter)

    The barbarous vestige of looking for lone heroes in modern "Democracies" echoes the individualistic nihilism of "Free Market" fundamentalism. Nowhere does central planning rig outcomes for so few at the cost of so many as in "Free Markets". Our media always sing about the heroic nature of the lone, sovereign, individual. The entrepeneur, etc It's a great con job. Make the petit bourgeois barnacle feel valorized by pipe dreams Madison Ave microwaves daily in 30 second nuggets......But God forbid people come together, organize, and strive to enact change!(That would be Marxism!(Ecrasez l'infame!)

    Thanks for the Socratic midwivery Charles!

  18. zilcho11:50 PM

    Well if you believe in people power from the outside then you have to judge political acts as acts not based on the people.

    You don't need an angelic reformer. Ever.
    That eric schneidermann is chasing the banks, even in a narrow (but powerful) sense, is an act that is praiseworthy, from an anti-corporate-looting position.

    To say that such acts don't matter when they are the fabric of "the system" is to miss the point of what reform would look like.
    Reform based on a man may look like stalin. Based on the populist mob will be bolshevism, not people power.
    It's all the quality of the actions, not the people behind them or their position.

    When lefties talk about how power corrupts it makes me just as sick as hearing, say, camille paglia talk about how "reasonable lefties" should really embrace authoritarian corporatism a little bit, just to be reasonable.
    There is no person or position to define, without the act.
    Getting into questions of identity is just a way of forgetting that you've forgotten to act, to do something (be it file a lawsuit against govt, start a small business association, volunteer an arts activity that teaches something, or just have sex because someone hot walked by and you aren't dead yet, as much as they'd like you to be) in exchange for the time you have to complain.
    Typical middle class white girl political attitude, whether from prissy paglia, pretentious sontag or fab fonda: complain complain complain because you aren't creative enough to do.

    Not that I'm accusing anyone here of being like that....I'm fired aren't I?
    -Oh, yeah. The rest of you get to work on this poochie character. I want him proactive.

  19. Zilcho,

    I'm not precluding the possibility that a reformer can get into office. But just look at what's happened to the NY AG: he made a show of going after the banks and he, in turn, got slapped down by the Obama administration. As Howard Zinn points out in the AlterNet interview I linked to in a recent post, those who work within the existing political system are usually corrupted by it -- and when they're not, they're crushed.

    I'm all for people doing things to change the system, my only point is that working from within it and hoping that if we just put the right people in power things will improve is foolish; we need to challenge and change the institutions of power that allow a single man to start a war or a handful of men to use taxpayer money bailing out banks, not just change the people within them.