Eric Posner on Yoo, Koh, and the War Powers Act
Harold Koh and John Yoo are two peas in a pod, except that Yoo is the right-wing pea and Koh is the left-wing pea. Yoo, a Justice Department lawyer during the Bush administration, interpreted “torture” narrowly in order to advance a constitutional agenda in which executive power has primacy. This interpretation permitted the Bush administration to use harsh interrogation tactics on suspected members of Al Qaeda. Koh, the legal adviser for Obama’s State Department, has now interpreted “hostilities” narrowly in order to advance a constitutional vision in which international norms and institutions play a role. Under Koh’s interpretation, Obama can keep troops in Libya despite apparently contrary provisions in the War Powers Act.
Many observers assumed that Koh and other lawyers appointed by Obama would repair the damage to the rule of law caused by Bush lawyers like Yoo—not follow in their path. Yet now, both Yoo and Koh have kicked up dust storms among law professors and other commentators who believe that the two lawyers distorted the meaning of a clear statute in an obvious way, and hence in defiance of Congress. These critics, however, are misguided.
Why did Yoo, and then Koh, who once belonged to the chorus of critics of Bush’s lawyers, act the way they did? There is no evidence that either of them sought to curry favor with his president. Yoo, for one, advanced views that he had published in academic articles before he entered the Bush administration. Koh’s case is a bit more complex; he was a strident critic of executive power during the Bush administration, and yet now, he appears to endorse presidential power. But Koh is also a long-time proponent of international institutions like the United Nations and believes that the United States should advance international humanitarian norms. His previous scholarship never acknowledged the tension between holding the executive to Congress’s foreign policy agenda (which is rarely internationalist) and advancing international law (which is something that only the U.S. executive has ever really cared about). Now, though, as a lawyer in the State Department, the internationally oriented agency of the executive branch, Koh is unsurprisingly resolving this tension in favor of the executive and international law. His legal advice to President Obama emphasized that the U.N. had approved the Libya intervention and that the effort had been undertaken for a humanitarian purpose.