The Harold Koh of Yesterday v. the Harold Koh of Today

by Pejman Yousefzadeh on March 21, 2011

An excellent post by Jack Goldsmith pointing out how Koh’s interpretations of Presidential wartime power were cast aside in the course of the Obama Administration’s action in Libya. As alluded to by Professor Goldsmith, given that Koh is now the legal adviser in the State Department, it would be especially interesting to ask how he reconciles his past views regarding Presidential wartime powers with the conduct of President Obama in initiating Operation Odyssey Dawn. Koh probably couldn’t tell us what kind of legal advice he gave to Secretary Clinton; attorney-client privilege would likely prevent him from revealing that advice absent a waiver from the State Department. But that doesn’t mean that a Congressional committee would not be able to ask Koh to justify the fact that President Obama has failed to “meaningfully consult with Congress and receive its affirmative authorization – not merely present it with faits accomplis – before engaging in war,” when Koh himself called for Presidents to “meaningfully consult with Congress and receive its affirmative authorization” in his 1990 brief on the subject. It doesn’t mean that Koh would not be able to tell us why he didn’t resign as a matter of principle, given that his legal analysis was so unceremoniously tossed to the side. It doesn’t mean that Koh would not be able to explain whether he was right when he wrote the 1990 brief, or whether the Obama Administration is right now.

And of course, Koh shouldn’t be the only one answering these questions, and offering explanations. Secretary Clinton should as well. So should the President, given his past statements regarding the scope of Presidential wartime powers. Little effort has been made to justify Operation Odyssey Dawn to the public. We haven’t been told why it is in America’s security interests to participate in it. We haven’t been told what our strategic and tactical goals are. We haven’t been told what the red lines are to our involvement (and if anyone believes that the decision not to put in ground troops qualifies as a red line, I would remind them of the Clinton Administration’s similar promise regarding the air campaign over Kosovo, a promise that had to be backed away from because the Serbs initially refused to be cowed by the air campaign, and had to be threatened with a ground assault before they finally waved the white flag). And we haven’t been told how Operation Odyssey Dawn lives up to the standards set by Obama Administration officials–back when they weren’t in power–regarding what a President must do before leading the country into war.

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