Lawyer Who Argued for Drone Strikes Angling for SCOTUS Nomination?


ACRU Staff


February 6, 2013

This column by ACRU Senior Legal Analyst Ken Klukowski was published February 6, 2013 on

“What shall it profit a man to gain the whole world, yet forfeit his soul?” — Mark 8:36

The U.S. government is claiming the power to kill American citizens without judicial review. This is a story about hypocrisy. And it’s the tale of two lawyers: President Barack Obama and State Department Legal Adviser Harold Koh.

While the Constitution only allows targeting of citizens under the most restrictive circumstances during war, the leading lawyer who made the argument that President Obama has this lethal power–Koh–was formerly a passionate opponent of presidential powers outside the supervision of the federal courts. Is Koh seeking a seat on the Supreme Court?

The Constitution draws a bold line between law enforcement and national security. One is domestic policy, the other is foreign policy. One is done by prosecutors and police, the other is done by the military and intelligence agencies. The Department of Justice (DOJ) is in the lead for one, and the Department of Defense is in the lead for the other.

While law enforcement errs on the side of liberty, with a presumption of innocence, the right to a jury trial, and countless procedural protections, war-fighting is about protecting the nation by defeating our enemies and winning the war. One is clean and orderly, the other is dirty and ugly by nature.

During the 2008 presidential campaign, then-Senator Obama was an inveterate foe of broad presidential wartime powers. He denounced them with sanctimonious language about how President George W. Bush’s wartime actions betrayed America’s most cherished principles.

Obama swore that as president he would close Guantanamo Bay (Gitmo) and end these Bush-era practices. He even reiterated his condemnation of these policies during his first Inaugural address, with Bush seated only a few feet away.

These are just a couple of the many promises to the American people that Obama has willfully broken and never been held to account. If a conservative Republican did this, it’s all the media would talk about, and the New York Times and MSNBC would probably be calling for his impeachment.

Obama was right to keep Gitmo open and use broad-based powers to protect the nation against terrorists. But that’s beside the point that he was a crusader against these things to help win the election, then turned on a dime once it suited him.

The latest part of this drama, though, crosses a new line. Obama has now adopted a policy encouraged by Attorney General Eric Holder saying in a legal memo that Obama has the power to use unmanned drones to kill American citizens without a judge having to sign off on the action. This deeply-controversial power is still not fully understood, and people are demanding answers.

The reality is that a president has power under Article II of the Constitution when acting as commander-in-chief of the military to use deadly force against military targets. In the case of the American-born terrorist leader in Yemen, Anwar Al-Awlaki, that would include even the power to assassinate an American citizen who takes up arms against our people and our homeland, such as planning and launching terrorist attacks against the United States. This is a matter for the military, not the criminal justice system.

But this power is strictly limited where citizens are concerned. It must (1) be a military operation, (2) against an enemy who poses an imminent threat to the lives of American citizens, (3) where it’s not feasible to capture this person. To its credit, the DOJ white paper makes these points.

But since the courts would not be involved, presidential findings would have to be made and kept in classified records to show what intelligence showed this citizen was in fact an imminent threat to American lives, and that he could not be captured instead.

The memo says this power only applies to Americans on foreign soil. That’s probably correct. It’s unlikely that we would be unable to capture an American if he were on U.S. soil. Deadly action would likely only be justified here if there was a “ticking time-bomb” scenario: where we discovered the location of an American terrorist where we could not get federal agents in place to capture him before the bomb goes off. Think of a Jack Bauer-type situation from 24.

But again, people in Obama and Koh’s camp used the term “Jack Bauer” to condemn the policies of Bush and conservatives in fighting terrorists. The hypocrisy here is the problem. Not just Obama’s, but Koh’s hypocrisy as well.

Harold Koh is an ultra-left legal scholar with top-notch credentials. He’s a graduate of Harvard University and Harvard Law School, and also studied at Oxford. He clerked for Justice Harry Blackmun (the author of Roe v. Wade) on the Supreme Court, and was dean of the top-ranked law school in the country, Yale Law School.

Koh laid the groundwork for this broad view of presidential power when Obama made Koh Hillary Clinton’s top lawyer by appointing him State Department Legal Adviser. Koh gave a speech on this power in 2010; he also authored a detailed legal memo cited in Holder’s opinion to Obama uncovered by the media this week.

Yet Koh was a wide-eyed, zealous opponent of Bush’s war on terrorism. He repeatedly characterized such actions as not only illegal but also in terms to lead people to the conclusion that these policies were morally wrong.

How in the world could he change his views so drastically? And why did he agree to leave his very lucrative job as dean at Yale to take this job anyway?

Could it be that Koh is trying to get Obama’s attention for the Supreme Court? Obama has now appointed a Hispanic woman and a Jewish-American woman to the Court. There has never been an Asian-American on the Court.

As one of the most brilliant and accomplished left-leaning lawyers in the United States, did Koh come to D.C. to cultivate relationships with senators who vote to confirm federal judges and to take Obama’s side in contentious issues to curry his favor? It’s speculation, but it also makes sense.

Rumors in D.C. are that Justice Ruth Bader Ginsburg plans to retire in 2015. It’s possible Obama wants to replace the first Jewish-American woman on the Court with another first. I agree with many Court watchers that Obama’s nomination of ultra-leftist Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit was part of grooming him for such a potential nomination.

While conservatives blocked that nomination, liberal Democratic Governor Jerry Brown has appointed Liu to the California Supreme Court, so Liu is still a potential Supreme Court nominee. Or, if Obama wants more of a stealth candidate with a resume of bipartisan accomplishment, he could appoint Sri Srinivasan, who has been nominated to be a judge on the U.S. Court of Appeals for the D.C. Circuit.

But none of those are set in stone. Could it be that Koh–who is returning to Yale Law School–still wants to compete for that seat?

Time will tell. But either way, his shocking reversal on the issue of presidential wartime power speaks more to his commitment to principle–or lack thereof–and should lead the U.S. Senate to conclude he is not worthy to sit on the Supreme Court.



Join ACRU Patriot 1776 club

Related articles