Harold Koh Is the Gollum of Foggy Bottom

What Obama's undeclared war in Libya reveals about the corrupting effects of power

Editor's Note: This column is reprinted with permission of the Washington Examiner. Click here to read it at that site.

"No more ignoring the law when it's inconvenient," then-Sen. Barack Obama proclaimed on the campaign trail; as president, he'd show the world "that the law is not subject to the whims of stubborn rulers."

So, last week must have been tough on the half-dozen or so liberals still naive enough to believe that.

On Thursday, the president answered House Speaker John Boehner's request for an explanation as to why, 90 days into our Libyan misadventure, he isn't in violation of the War Powers Resolution, which requires him to terminate U.S. engagement in "hostilities" after 60 days in the absence of congressional authorization.

"We are acting lawfully," said Harold Koh, the State Department's top legal adviser. You see, since we're hitting Tripoli with offshore missiles and unmanned drones, and the Libyans can't hit back, we're not engaged in "the kind of 'hostilities' envisioned by the War Powers Resolution."

There's a lot to be said about the bald-faced absurdity of that rationale. But one of the most interesting developments is Koh's role in crafting the administration's line.

Considering Koh's background, the whole episode offers a cautionary tale about the corrupting effects of power.
Harvard's Jack Goldsmith notes that "for a quarter century before heading up State-Legal, Koh was the leading and most vocal academic critic of presidential unilateralism in war." On the strength of that reputation, Koh rose to the deanship of Yale Law School in 2004.

And Koh seemed to take the War Powers Resolution pretty seriously. In 1994, for example, he wrote to the Clinton Justice Department to protest the planned deployment to Haiti, which was carried out without a single shot being fired:

"Nothing in the War Powers Resolution authorizes the President to commit armed forces overseas into actual or imminent hostilities in a situation where he could have gotten advance authorization."

Yet the implications of Koh's position today are that the president can rain down destruction via cruise missiles and robot death kites anywhere in the world, and unless an American soldier might get hurt, neither the Constitution nor the War Powers Resolution are offended.

On Friday, Koh went before the American Constitution Society, the progressive alternative to the Federalist Society, to give a self-congratulatory speech about maintaining one's integrity in "public service."

"I never say anything I don't believe," Koh insisted; that includes "the administration's position on war powers in Libya." "I've lived the life I wanted to live," Koh proclaimed, "I still believe in my principles." The only thing missing was the refrain, "I did it myyyyy wayyyy!"

Perhaps Koh really believes that he still believes in his principles. In a way that's more unsettling than the thought that his late-inning conversion to presidential imperialism was purely cynical.

John Dean, who served prison time for his role in the Watergate cover-up as a young White House counsel to Richard Nixon, once said that young people should be kept away from top executive posts.

They lacked the life experience and independence needed to resist falling under the spell of presidents who want them to bend or break the law.

Koh was in his mid-50s when he joined the administration, coming off a distinguished career built on opposition to the Imperial Presidency. Yet the lure of being "in the room" when the big decisions are made seems to have turned him into the Gollum of Foggy Bottom.

It's the kind of story you hear again and again in D.C.—on the right and the left—of principles sold out for the dubious rewards of "access" and "relevance." This town is "Hollywood for the Ugly" in more ways than one.

Gene Healy is a vice president at the Cato Institute and author of The Cult of the Presidency: America's Dangerous Devotion to Executive Power (Cato 2008). He is a columnist at the Washington Examiner, where this article originally appeared. Click here to read it at that site.

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  • ||

    Hummm, if only there were something to limit that power. Perhaps a Constitution of some sort.

  • Exra Klein||

    But it was written like a hundred years ago and it's too hard to understand.

  • ||

    I say we throw the government into a large volcano.

  • ||

    Pele demands a sacrifice!

  • ||

    The soccer player? I had no idea he was so powerful.

  • Sudden||

    He wasn't, but George Best sure as shit was.

  • Ray||

    It worked for Lord XENU and the thetans.

  • sarcasmic||

    According to the Constitution the federal government can do anything that is "necessary and proper" to promote the "general welfare" and "regulate commerce".

    No limitations.

  • ||

    That is the correct interpretation based on solid "legal reasoning".

  • Almanian||

    And years of "precedent"

  • ||

    Do you think they confuse "precedent" with "president"? That could explain a few things.

  • Rich||

    Possibly. Anyway, in a just world, he'll be unpresidented in 2012.

  • Bar Student||

    Probably should avoid assuming the just part until you see who the replacement is.

  • Rich||

    I'll ... think about that.

  • ||

    We don't need all of that crap. We just need the preamble:

    We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

    Perfect. The only reference to liberty is for all of us, not any individual one of us, we collectively have the authority to make our perfect utopian vision a reality, we can do anything we want to ensure a passive, tranquil population, and, of course, we can do anything whatsoever to promote the general welfare.

    I'm surprised statists aren't urging us to simplify the Constitution to this one sentence.

  • ||

    One Oval Office to find them
    And in the Darkness bind them.

  • ||

  • Sinic||

    So would that make Obama Frodo or Sauron? I'm confused.

  • ||

    Let's put it this way. Say the Ring really exists. Obama finds it. Gandalf appears and tells him how dangerous the Ring is and that it must be destroyed by tossing it into a volcano in Iceland.

    Does Obama obey, or does he put the Ring on?

  • ||

    What did he say he'd do during the campaign? Because whatever he said he'd do, he'll do the opposite.

    See how easy that was?

  • ||

    It's almost impossible to imagine him giving up the Ring, isn't it? Interesting.

  • Sudden||

    I think the better analogy would be Isildur. GWB was the Sauron, and rightfully so. Although Obama did not manage to kill him or beat him in an election, he beat his legacy. All the things he promised to do were essentially destroy the Ring. Instead, like Isildur, he was tempted by it and took it for his own.

  • ||

    Nah, he's Saruman. He wants to be just like Sauron.

    On second thought, I think that's giving him too much credit.

  • cynical||

    But how can we pick out just one official or advisor to be Wormtongue?

  • ||

    He's a character based on multiple people.

  • ||

    But how can we pick out just one official or advisor to be Wormtongue?

    Definitely not Biden. While he has the dark impulses and will to deceive, he lacks the intellectual power.

    Krugmann could be a Nazgûl, though.

  • ||

    No. He's the Mouth of Sauron.

  • ||

    Obama declares that, should he become King President, he will never wear the ring.

    Then puts it on at the moment he is sworn in.

  • Bar Student||

    He must put it on, think of all the things he could do for the children!

  • Tim||

    He puts it on every time he hears Michelle coming down the hall.

  • Rich||

    Yes, for the precious children!

  • Paul||

    So would that make Obama Frodo or Sauron? I'm confused.

    Saruman, actually.

  • ||

    Saruman. . the White? Racist!

  • ||

    hey, at least gandalf the grey was multicultural!

  • MJ||

    When he turned evil he called humself "Saruman of Many Colors" as in a rainbow.

  • Otto||

    ...since we're hitting Tripoli with offshore missiles and unmanned drones, and the Libyans can't hit back... [the WPR doesn't apply]

    I'll admit that Qaddafi is a scumbag. But the sick, vicious mentality behind that statement is that of a 10 year-old playground bully, not an alleged adult, and certainly not someone who should be anywhere near power.

  • Terrorist||

    You bomb our cities from afar... and you call us terrorists?

  • cc||

    Apt True Lies reference.

  • ||

    Don't you understand?

    It's not a war, because Libya poses no threat to us whatsoever!

    See how easy that was?

  • ||

    Most of the planet is unable to stand up to us if all we're interested in is toppling a government. Does that mean that we don't need a declaration of war to invade any country?

  • Almanian Obama||

    Let me be clear - yes

  • asdf||

    We should be able to nuke anyone down and not have it become a war. Awesome imo.

  • ||

    I heard a disturbing assessment of the relative capability of the nuclear powers. We're now so far beyond the rest of the world that we could easily stage a first strike without fear of much, if any, reprisal. While I'd rather be on our end of this capability than the other, I sure hope that doesn't tempt any of the idiots we keep sending to the White House.

  • sarcasmic||

    A nuclear strike does not involve boots on the ground, so by Obama's definition turning a country into radioactive glass does not constitute war.

  • creech||

    You are correct. It is only war if a president from the R party does so.

  • Tim||

    Let's take their lunch money.

  • ||

    Actually, Von Clausewitz covered this exact point in On War.

    Von Clausewitz said that war does not begin when someone invades your country, it begins when you resist the invader. He goes on to say that the invader would like nothing better than for the people of the invaded country to submit without a fight.

  • In Time of War||

    I'm certainly no Constitutional scholar, but to my mind if our armed forces are in an area for no other reason than to kill fur'ners, and they are actively killing fur'ners, then that sort of makes it a war.
    But I'm just a simple man.

  • ||

    I look at it this way: War is a big deal. People are being killed in my name and, in theory, on my behalf. Before my government starts doing that sort of thing, I have a right to have a voice in it. Allowing one guy to have the power to get us into a war is clearly wrong and dangerous. War is something we should be committed to as a nation, not something we engage in on a whim.

  • ||

    Maybe Quaddafi sent Obama some tennis balls.

  • Obama V||

    When we have march'd our rackets to these balls,
    We will, in FranceLibya, by God's grace, play a set
    Shall strike his father's crown into the hazard.

  • ||

    Thus you compel me,
    Thus I remit:

    DAUPHIN

    For the Dauphin,
    I stand here for him: what to him from England?

    EXETER

    Scorn and defiance; slight regard, contempt,
    And any thing that may not misbecome
    The mighty sender, doth he prize you at.
    Thus says my king; an' if your father's highness
    Do not, in grant of all demands at large,
    Sweeten the bitter mock you sent his majesty,
    He'll call you to so hot an answer of it,
    That caves and womby vaultages of France
    Shall chide your trespass and return your mock
    In second accent of his ordnance.
  • Tim||

    WHo would fartles bear?

  • MJ||

    Where's the "turn your balls to gunstones" line, dammit?

  • ||

    Well said Pro Lib. Very well said.

  • Paul||

    War is something we should be committed to as a nation, not something we engage in on a whim.

    But it's a NATO operation. Doesn't that make it much more cosmopolitan?

  • Ray||

    But we live in a republic, and our congress acts on our behalf. I know, I know, I threw up saying that last bit too. So, technically you do have a voice, just not a direct one like a majority democracy.

  • Brett L||

    Try to keep up Ray. 1)Kmart sucks. 2)We don't have Congressional approval.

  • Almanian||

    This is today's "Dog Bites Man" story, right?

  • Fist of Etiquette||

    If you are young and demand congressional approval, then you have no heart; but if you are old and eschew it, then you have no brain.

  • ||

    Sorta on the topic of state power:

    Take a look at this mornings Balko ball-kick over at The Agitator.

  • ||

    Take a look at this mornings Balko ball-kick cobra strike to the taint over at The Agitator.

    Jeezuz man, frikkin' another elderly citizen gunned down. Are old people the new puppies? And right next to a kids softball game...I need to lie down.

  • ||

    Thanks. I've been missing that sick feeling in the pit of my stomach.

  • ||

    the guerana SWAT team was just cleared via investigation, btw. does that help. forensic analysis of guerana's rifle (it was struck by rounds) shows it was pointed AT the SWAT officers.

    you're welcome

  • ||

    What, so now people aren't allowed to defend their homes.

    dunphy, it doesn't matter if he pointed the rifle at them or not. They never should have been in his house in the first place.

    Not to get all Godwin, but if you shoot at a KGB agent breaking down your door, that doesn't mean its right for him to do it.

    Besides, the investigation was conducted by the people who did the shooting. Do you honestly think they're going to find anything to indict fellow officers with.

  • ||

    #1 *i* didn't say it was justified, so don't argue it with me
    #2 you are wrong (entirely unsurprising). this was not an investigation conducted by the people who did the shooting. it was the prosecutor investigation. and of course I am sure the cops somehow doctored the bullet hits to the rifle just ot make it APPPEAR like it was pointing at them when the rounds hit it (rolls eyes)
    #3 i was agnostic on the justification of the shooting, and said that numerous times. but now, i will rely on the prosecutors investigation ABSENT evidence to the contrary and conclude it most likely was justified
    #4 the SWAT officers (likely) did not write the warrant. investigators did. SWAT just serves them. the warrant was written by investigators, a prosecutor approved it, and a judge signed it. all 3 groups thought there was probable cause. they did what the constitution requires - they got a warrant.

    that's a TOTALLY seperate argument to whether the shooting was justified, though

    regardless, i realize the bigots made their mind up BEFORE the evidence was in. that's what bigots do. plenty of police force incidents are unjustified. i have pointed out several in recent memory. this apparently aint one of them

    hth

  • Jim||

    If I didn't know who the hell had kicked in my door (or thought it may be criminals impersonating police), I'd sure as hell have my weapon pointed at them, too. Not much point to "home defense" otherwise.

  • rst||

    I still don't get it. What about the War Powers Act allowed Obama *one day* of military adventurism in Libya, let alone 60?

    Can one of you brilliant lawyer-types fill me in? Because from where I'm sitting, this was an illegal act from the very moment he violated Libyan sovereignty.

  • Progressives||

    But the black Jesus said he wants to help the poor people get freedom!

  • ||

    You're right.

    The WPA sets a number of conditions to enable 60 days of operations.

    Libya fit none of these.

    It was illegal from the get-go. People granting them 60 days are giving them a Mulligan.

    In large part, I think the 60 days meme went out to the borg that makes up the Washington press corp and political class when everyone thought the operation would be over in 60 days. This would have allowed them to ignore it. However, as it happened, the operation's incompetence ensured that even this duplicitous swindle didn't hold up.

  • ||

    Obama's reached the point where he's violently raped, eviscerated, and utterly annihilated the limits of his constitutional power, waged illegal warfare, and spend his entire presidency tearing apart the fabric of the freeman's republic at every level, and this mother-fucking cock-sucker STILL hasn't been impeached, tried, and executed for treason? Seriously, how much worse is a president going to have to go before the fucking general population wakes the mother-fuck up?

  • ||

    ***Spent

  • ||

    Um....hater ?

  • ||

    In all fairness Res, the general population has been entranced by far more interesting things. The latest being Weiner's weiner and a dead Jackass. Our collective attention span is about as deep as my understanding of quantum mechanics.

  • ||

    and hockey...

  • ||

    Actually I understand hockey pretty well.

  • Night Elf Mohawk||

    What's the point of the offsides rule?

  • Toolbag||

    So there isn't a guy just waiting by the opposing teams net for a pass from the other side of the rink. Wait did somebody say hockey?

  • Anonymous Coward||

    Much, much worse.

    He's gotta to get TWO chubby Jewish girls to suck his dick at the same time.

  • Boxbot||

    Obama is still largely in compliance with his major campaign promises. He has not, as far as I know, spent any of his term as a Caucasian southerner.

  • ||

    So, if the Japanese had nailed the aircraft carriers along with the rest of the Pacific Fleet in December 1941 thereby making it impossible for the U.S. to strike back, the attack on Pearl Harbor wouldn't have been an act of war?

  • Paul||

    If those planes had been unmanned-- as I believe the logic goes-- then yes.

    But I also submit that your question as it stands could also be 'yes'.

  • ||

    Anyone here who has an idea a Kenyan(me) is reading the dimwitness of your American president who you often refer as having Kenyan roots, but we disown him?

  • Paul||

    "the kind of 'hostilities' envisioned by the War Powers Resolution."

    So the War Powers Act is kind of a "living document" of sorts...

  • Ray||

    I hate the living document argument. My only theory about why leftists proclaim it a living document is that it implies at some point it will die and need a replacement.

  • OO||

    effing amendments, how do they live?

  • ||

    Can one of you brilliant lawyer-types fill me in? Because from where I'm sitting, this was an illegal act from the very moment he violated Libyan sovereignty.

    No argument here.

  • ||

    It should be that the president can't use the military except when U.S. territory or military personnel are under immediate threat (or attack), or, of course, when war has been declared.

    Accepting that our proto-imperial position seems to demand the expansion of when the president is acting "defensively", even then, there need to be limits. For instance, the attack on Libya, which didn't involve in any way a direct threat to us or our military, should've required Congressional authorization, even applying the expansive view of presidential power.

    The president is subject to impeachment right now. And a Congress worth a shit would start the proceedings. The fact that some of you think it's okay to go to war without congressional approval, provided that it's your political side that's calling the shots, is disturbing in more ways than I can easily count.

  • ||

    MLK was far more of a pro-government person than I ever will be, but I believe he would be disgusted with Obama's War.

  • Cheap Crystal Jewelry||

    Dog Bites Man story, but the man should bite back!

  • Aimeng Fashion Jewelry||

    no more war in this world!

  • Aimeng Fashion Jewelry||

    no more war in this world!

  • قبلة الوداع||

    ThaNk U

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