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Former Obama Drone Executive Now Teaches Human Rights Law at NYU

Thursday, April 16, 2015 By Ben Norton, Truthout | News Analysis
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Harold Koh, as the Legal Adviser of the US Department of State, was the leading legal defender of Obama's drone program. He helped the Obama administration extrajudicially kill people - including US citizens and civilians - with flying machines that are invisible to the naked eye.

Koh is now a visiting scholar at the New York University (NYU) Law School, where he is teaching international human rights law.

US News and World Report lists NYU as number six in its list of the 10 best lawschools.

On weekly "Terror Tuesdays" meetings in the White House, Obama drafts a list of those who will be extrajudicially assassinated via drone. This is known popularly as the US government's "Kill List" - euphemistically also referred to as its "disposition matrix."

US drones regularly kill civilians, including young children - whose deaths are subsequently often covered up by the US media - in Pakistan, Yemen, Afghanistan, and elsewhere. Pulitzer Prize-winning investigative journalist Glenn Greenwald indicates that the US has covered up its killing of civilians by redefining "militant" to mean "all military-age males in a strike zone."

It is moreover widely acknowledged that the US' ostensibly "anti-terrorist" droneprogram only further fuels extremism in the Middle East, North Africa, and South Asia.

Pakistani activist Malala Yousafzai, the youngest Nobel Prize laureate in history, warned Obama in an October 2013 meeting in the Oval Office that US drone strikes are "fueling terrorism." A few weeks after this meeting, nine-year-old Nabila Rehman and her family testified before Congress. The young Pakistani girl was out in a field picking okra when her grandmother was blown to bits by a US drone strike, right before her eyes. Seven children were also wounded. Only five (out of 535) Congressional representatives attended the hearing.

Nabila's brother Zubair, a 13-year-old who was injured in the attack, told the modicum of congresspeople present "I no longer love blue skies. In fact, I now prefer grey skies. Drones don't fly when sky is grey."

By the end of 2013, the Bureau of Investigative Journalism estimated that between 416 and 951 civilians, including 168 to 200 children, had been killed in Pakistan alone. This is a conservative estimate.

There has been no dearth of killings of civilians. In December 2012, a US dronestrike killed 12 Yemeni civilians at a wedding.

Previously, in July 2008, a US airstrike massacred 47 Afghan civilians, mostly women and children, at a wedding in the village in Dih Bala. In November 2008, a US airstrike killed 37 more Afghan civilians, again mostly women and children, at a wedding in the village of Wech Baghtu. Immediately in the wake of both attacks, the US claimed no civilians had been killed. These claims were later proven to be intentionally misleading lies.

Stanford Law School's "Living Under Drones" study described what it is like to live under the constant threat of drone strikes (emphasis mine):

Drones hover 24 hours a day over communities in northwest Pakistan, striking homes, vehicles, and public spaces without warning. Their presence terrorizes men, women, and children, giving rise to anxiety and psychological trauma among civilian communities. Those living under drones have to face the constant worry that a deadly strike may be fired at any moment, and the knowledge that they are powerless to protect themselves.

These fears have affected behavior. The US practice of striking one area multiple times, and evidence that it has killed rescuers, makes both community members and humanitarian workers afraid or unwilling to assist injured victims. Some community members shy away from gathering in groups, including important tribal dispute-resolution bodies, out of fear that they may attract the attention of drone operators. Some parents choose to keep their children home, and children injured or traumatized by strikes have dropped out of school. Waziris told our researchers that the strikes have undermined cultural and religious practices related to burial, and made family members afraid to attend funerals. In addition, families who lost loved ones or their homes in drone strikes now struggle to support themselves.

Amnesty International has said that the US' killings of civilians via drones may amount to war crimes, and has demanded that the US be held accountable

One of the legal architects of the very program that Amnesty International has accused of being responsible for war crimes is now teaching international human rights law at a top university.

Numerous NYU law students and alumni, lawyer and activist organizations - including the international committee of the National Lawyer's Guild - law students at other universities, and NYU faculty signed and circulated a petition "condemn[ing] NYULaw's hiring of Harold H. Koh for the 2014-2015 academic year." The petition reads as follows

STATEMENT OF NO CONFIDENCE IN HAROLD H. KOH

"A functionary, when he really is nothing more than a functionary, is really a very dangerous gentleman."
-Hannah Arendt, 1964

Dear Dean Trevor Morrison and President John Sexton,

We, the undersigned students, organizations and concerned members of the NYU and global community, condemn NYU Law's hiring of Harold H. Koh for the 2014-2015 academic year. NYU Law brands itself as "a private university in the public service"[1] and prides itself on its commitment to civil liberties, human rights and international law. Yet, its decision to honor Mr. Koh as a "distinguished scholar in residence"[2] calls these commitments into question given Mr. Koh's role as a key legal architect of theObama Administration's extrajudicial killing program during his time as State Department Legal Adviser (2009-2013)[3].From his position of authority within theObama Administration, Mr. Koh has publicly argued[4] for the U.S. drone program's legality and has stated[5] that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war." This is despite compelling evidence to the contrary, including evidence produced by NYU Law scholars.

In 2010, for example, the U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston, issued a report[6] that outlined why the U.S. droneprogram violates applicable international humanitarian and human rights laws.[7] Moreover, in 2012, Stanford Law School's International Human Rights and Conflict Resolution Clinic, in partnership with NYU Law's Global Justice Clinic, co-authored a report[8] that documented the devastation and the profound human costs that the U.S.drone program has exacted on civilians living in Pakistan. Among the report's findings were: evidence that U.S. drone strikes have killed and injured substantial numbers of civilians[9]; U.S. drone policies have inflicted profound physical and psychological harm on civilians[10]; the percentage of high-level targets killed by drone strikes are estimated at just 2% of those killed by drone strikes overall[11]; and, finally, the report found that "current US targeted killings and drone strike practices undermine respect for the rule of law and international legal protections and may set dangerous precedents."[12]

In addition to publicly defending the U.S. drone program's legality, and thereby facilitating what Professor Alston has called[13] "a burgeoning program of international killing" that does not comply with international law, Mr. Koh also directly facilitated the extrajudicial, unconstitutional killing[14] of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011.

Investigative reporter Jeremy Scahill documents Mr. Koh's particular role in Mr. al-Aulaqi's assassination in his book, Dirty Wars: The World is a Battlefield. He reports that as legal adviser, "Harold Koh, wanted to lay out the case publicly before Aulaqi was killed," in an effort to preempt critiques of the administration's decision to target and kill a U.S. citizen in secret and without a trial.[15] According to Mr. Scahill:

"In advance of his public speech, the CIA and military gave Koh access to their intel on Aulaqi. Koh settled in for a long day of reading in the Secured Classified Intelligence Facility. According to [Daniel] Klaidman, whose book [Kill or Capture] was based almost entirely on leaks from administration officials, Koh 'had set his own legal standard to justify the targeted killing of a US citizen: evil, with iron-clad intelligence to prove it.'"[16]

Mr. Koh's "stamp of approval" for Mr. al-Aulaqi's killing was particularly useful to theObama Administration, Mr. Scahill reports, because his prior reputation as "a liberal, pro-human rights, pro-civil liberties lawyer" was "a strong preemptive strike against the critics."[17] In essence, Mr. Koh leveraged his human rights record to strengthen his otherwise specious arguments that the U.S. government was not violating either thehuman or constitutional rights of one of its own citizens. We find Mr. Koh's conduct in this regard to be unethical and highly unprincipled.

While we believe that NYU Law should remain committed to academic freedom, we take issue not with Mr. Koh's opinions but rather with his actions - that is, his direct facilitation of the U.S. government's extrajudicial imposition of death sentences on U.S. citizens along with civilians of other nationalities. By hiring Mr. Koh to teach International Human Rights Law, NYU Law places its imprimatur not on what Mr. Koh thinks, but rather on what he did.

Given Mr. Koh's role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International HumanRights Law, to be unacceptable.

Sincerely,

The Undersigned

[1] N.Y.U. Law Public Interest Law Center, http://www.law.nyu.edu/publicinterestlawcenter

[2] N.Y.U. Law, "Harold Koh will visit NYU Law in 2014-15 academic year," http://www.law.nyu.edu/news/Harold-Koh-Distinguished-Scholar-in-Residence

[3] Id.

[4] Lawfare, "The Obama Administration and International Law, Speech by Harold Hongju Koh, Legal Adviser, U.S. Department of State," Mar. 25, 2010, http://www.lawfareblog.com/wp-content/uploads/2013/01/Speech-by-Harold-Hongju-Koh-State-Department-Legal-Adviser-at-the-Annual-Meeting-of-the-American-Society-of-International-Law-Mar-25-2010.pdf

[5] Conor Friedersdorf, Harold Koh's Slippery, Inadequate Criticism of the Drone War, The Atlantic, May 9, 2013, http://www.theatlantic.com/politics/archive/2013/05/harold-kohs-slippery-inadequate-criticism-of-the-drone-war/275692/

[6] Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf

[7] For instance, the Special Rapporteur noted that the United States government's failure to provide transparency and accountability concerning those it targets and kills is a violation of the United States' obligations under international human rights and humanitarian law. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, ¶ 87, Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010) ("The refusal by States who conduct targeted killings to provide transparency about their policies violates the international legal framework that limits the unlawful use of lethal force against individuals.").

[8] International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (2010), available at http://www.livingunderdrones.org/wp-content/uploads/2013/10/Stanford-NYU-Living-Under-Drones.pdf

[9] The report notes that The Bureau of Investigative Journalism (TBIJ) has reported that, "from June 2004 through mid-September 2012, available data indicate that dronestrikes killed 2,562-3,325 people in Pakistan, of whom 474-881 were civilians, including 176 children. TBIJ reports that these strikes also injured an additional 1,228-1,362 individuals." Id. at vi.

[10] Id. at vii.

[11] Id.

[12] Id. at viii.

[13] Philip Alston, The CIA and Targeted Killings Beyond Borders, 2. Harv. Nat'l Sec. J. 283 (2011) (abstract available at http://papers.ssrn.com/sol3/papers.cfm%3Fabstract_id=1928963).

[14] Al-Aulaqi v. Obama Complaint for Declaratory and Injunctive Relief (violation of constitutional rights and international law -- targeted killing), available at https://www.aclu.org/files/assets/alaulaqi_v_obama_complaint_0.pdf

[15] Jeremy Scahill, Dirty Wars: The World is a Battlefield 371 (2013).

[16] Id.

[17] Id.

Copyright, Truthout. May not be reprinted without permission.

Ben Norton

Ben Norton is a freelance journalist and writer based in New York City. His work has been published in a variety of outlets. You can find his website at BenNorton.com. He tweets at @BenjaminNorton.

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Former Obama Drone Executive Now Teaches Human Rights Law at NYU

Thursday, April 16, 2015 By Ben Norton, Truthout | News Analysis
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Harold Koh, as the Legal Adviser of the US Department of State, was the leading legal defender of Obama's drone program. He helped the Obama administration extrajudicially kill people - including US citizens and civilians - with flying machines that are invisible to the naked eye.

Koh is now a visiting scholar at the New York University (NYU) Law School, where he is teaching international human rights law.

US News and World Report lists NYU as number six in its list of the 10 best lawschools.

On weekly "Terror Tuesdays" meetings in the White House, Obama drafts a list of those who will be extrajudicially assassinated via drone. This is known popularly as the US government's "Kill List" - euphemistically also referred to as its "disposition matrix."

US drones regularly kill civilians, including young children - whose deaths are subsequently often covered up by the US media - in Pakistan, Yemen, Afghanistan, and elsewhere. Pulitzer Prize-winning investigative journalist Glenn Greenwald indicates that the US has covered up its killing of civilians by redefining "militant" to mean "all military-age males in a strike zone."

It is moreover widely acknowledged that the US' ostensibly "anti-terrorist" droneprogram only further fuels extremism in the Middle East, North Africa, and South Asia.

Pakistani activist Malala Yousafzai, the youngest Nobel Prize laureate in history, warned Obama in an October 2013 meeting in the Oval Office that US drone strikes are "fueling terrorism." A few weeks after this meeting, nine-year-old Nabila Rehman and her family testified before Congress. The young Pakistani girl was out in a field picking okra when her grandmother was blown to bits by a US drone strike, right before her eyes. Seven children were also wounded. Only five (out of 535) Congressional representatives attended the hearing.

Nabila's brother Zubair, a 13-year-old who was injured in the attack, told the modicum of congresspeople present "I no longer love blue skies. In fact, I now prefer grey skies. Drones don't fly when sky is grey."

By the end of 2013, the Bureau of Investigative Journalism estimated that between 416 and 951 civilians, including 168 to 200 children, had been killed in Pakistan alone. This is a conservative estimate.

There has been no dearth of killings of civilians. In December 2012, a US dronestrike killed 12 Yemeni civilians at a wedding.

Previously, in July 2008, a US airstrike massacred 47 Afghan civilians, mostly women and children, at a wedding in the village in Dih Bala. In November 2008, a US airstrike killed 37 more Afghan civilians, again mostly women and children, at a wedding in the village of Wech Baghtu. Immediately in the wake of both attacks, the US claimed no civilians had been killed. These claims were later proven to be intentionally misleading lies.

Stanford Law School's "Living Under Drones" study described what it is like to live under the constant threat of drone strikes (emphasis mine):

Drones hover 24 hours a day over communities in northwest Pakistan, striking homes, vehicles, and public spaces without warning. Their presence terrorizes men, women, and children, giving rise to anxiety and psychological trauma among civilian communities. Those living under drones have to face the constant worry that a deadly strike may be fired at any moment, and the knowledge that they are powerless to protect themselves.

These fears have affected behavior. The US practice of striking one area multiple times, and evidence that it has killed rescuers, makes both community members and humanitarian workers afraid or unwilling to assist injured victims. Some community members shy away from gathering in groups, including important tribal dispute-resolution bodies, out of fear that they may attract the attention of drone operators. Some parents choose to keep their children home, and children injured or traumatized by strikes have dropped out of school. Waziris told our researchers that the strikes have undermined cultural and religious practices related to burial, and made family members afraid to attend funerals. In addition, families who lost loved ones or their homes in drone strikes now struggle to support themselves.

Amnesty International has said that the US' killings of civilians via drones may amount to war crimes, and has demanded that the US be held accountable

One of the legal architects of the very program that Amnesty International has accused of being responsible for war crimes is now teaching international human rights law at a top university.

Numerous NYU law students and alumni, lawyer and activist organizations - including the international committee of the National Lawyer's Guild - law students at other universities, and NYU faculty signed and circulated a petition "condemn[ing] NYULaw's hiring of Harold H. Koh for the 2014-2015 academic year." The petition reads as follows

STATEMENT OF NO CONFIDENCE IN HAROLD H. KOH

"A functionary, when he really is nothing more than a functionary, is really a very dangerous gentleman."
-Hannah Arendt, 1964

Dear Dean Trevor Morrison and President John Sexton,

We, the undersigned students, organizations and concerned members of the NYU and global community, condemn NYU Law's hiring of Harold H. Koh for the 2014-2015 academic year. NYU Law brands itself as "a private university in the public service"[1] and prides itself on its commitment to civil liberties, human rights and international law. Yet, its decision to honor Mr. Koh as a "distinguished scholar in residence"[2] calls these commitments into question given Mr. Koh's role as a key legal architect of theObama Administration's extrajudicial killing program during his time as State Department Legal Adviser (2009-2013)[3].From his position of authority within theObama Administration, Mr. Koh has publicly argued[4] for the U.S. drone program's legality and has stated[5] that "U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war." This is despite compelling evidence to the contrary, including evidence produced by NYU Law scholars.

In 2010, for example, the U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston, issued a report[6] that outlined why the U.S. droneprogram violates applicable international humanitarian and human rights laws.[7] Moreover, in 2012, Stanford Law School's International Human Rights and Conflict Resolution Clinic, in partnership with NYU Law's Global Justice Clinic, co-authored a report[8] that documented the devastation and the profound human costs that the U.S.drone program has exacted on civilians living in Pakistan. Among the report's findings were: evidence that U.S. drone strikes have killed and injured substantial numbers of civilians[9]; U.S. drone policies have inflicted profound physical and psychological harm on civilians[10]; the percentage of high-level targets killed by drone strikes are estimated at just 2% of those killed by drone strikes overall[11]; and, finally, the report found that "current US targeted killings and drone strike practices undermine respect for the rule of law and international legal protections and may set dangerous precedents."[12]

In addition to publicly defending the U.S. drone program's legality, and thereby facilitating what Professor Alston has called[13] "a burgeoning program of international killing" that does not comply with international law, Mr. Koh also directly facilitated the extrajudicial, unconstitutional killing[14] of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011.

Investigative reporter Jeremy Scahill documents Mr. Koh's particular role in Mr. al-Aulaqi's assassination in his book, Dirty Wars: The World is a Battlefield. He reports that as legal adviser, "Harold Koh, wanted to lay out the case publicly before Aulaqi was killed," in an effort to preempt critiques of the administration's decision to target and kill a U.S. citizen in secret and without a trial.[15] According to Mr. Scahill:

"In advance of his public speech, the CIA and military gave Koh access to their intel on Aulaqi. Koh settled in for a long day of reading in the Secured Classified Intelligence Facility. According to [Daniel] Klaidman, whose book [Kill or Capture] was based almost entirely on leaks from administration officials, Koh 'had set his own legal standard to justify the targeted killing of a US citizen: evil, with iron-clad intelligence to prove it.'"[16]

Mr. Koh's "stamp of approval" for Mr. al-Aulaqi's killing was particularly useful to theObama Administration, Mr. Scahill reports, because his prior reputation as "a liberal, pro-human rights, pro-civil liberties lawyer" was "a strong preemptive strike against the critics."[17] In essence, Mr. Koh leveraged his human rights record to strengthen his otherwise specious arguments that the U.S. government was not violating either thehuman or constitutional rights of one of its own citizens. We find Mr. Koh's conduct in this regard to be unethical and highly unprincipled.

While we believe that NYU Law should remain committed to academic freedom, we take issue not with Mr. Koh's opinions but rather with his actions - that is, his direct facilitation of the U.S. government's extrajudicial imposition of death sentences on U.S. citizens along with civilians of other nationalities. By hiring Mr. Koh to teach International Human Rights Law, NYU Law places its imprimatur not on what Mr. Koh thinks, but rather on what he did.

Given Mr. Koh's role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International HumanRights Law, to be unacceptable.

Sincerely,

The Undersigned

[1] N.Y.U. Law Public Interest Law Center, http://www.law.nyu.edu/publicinterestlawcenter

[2] N.Y.U. Law, "Harold Koh will visit NYU Law in 2014-15 academic year," http://www.law.nyu.edu/news/Harold-Koh-Distinguished-Scholar-in-Residence

[3] Id.

[4] Lawfare, "The Obama Administration and International Law, Speech by Harold Hongju Koh, Legal Adviser, U.S. Department of State," Mar. 25, 2010, http://www.lawfareblog.com/wp-content/uploads/2013/01/Speech-by-Harold-Hongju-Koh-State-Department-Legal-Adviser-at-the-Annual-Meeting-of-the-American-Society-of-International-Law-Mar-25-2010.pdf

[5] Conor Friedersdorf, Harold Koh's Slippery, Inadequate Criticism of the Drone War, The Atlantic, May 9, 2013, http://www.theatlantic.com/politics/archive/2013/05/harold-kohs-slippery-inadequate-criticism-of-the-drone-war/275692/

[6] Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston,Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf

[7] For instance, the Special Rapporteur noted that the United States government's failure to provide transparency and accountability concerning those it targets and kills is a violation of the United States' obligations under international human rights and humanitarian law. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, ¶ 87, Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010) ("The refusal by States who conduct targeted killings to provide transparency about their policies violates the international legal framework that limits the unlawful use of lethal force against individuals.").

[8] International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (2010), available at http://www.livingunderdrones.org/wp-content/uploads/2013/10/Stanford-NYU-Living-Under-Drones.pdf

[9] The report notes that The Bureau of Investigative Journalism (TBIJ) has reported that, "from June 2004 through mid-September 2012, available data indicate that dronestrikes killed 2,562-3,325 people in Pakistan, of whom 474-881 were civilians, including 176 children. TBIJ reports that these strikes also injured an additional 1,228-1,362 individuals." Id. at vi.

[10] Id. at vii.

[11] Id.

[12] Id. at viii.

[13] Philip Alston, The CIA and Targeted Killings Beyond Borders, 2. Harv. Nat'l Sec. J. 283 (2011) (abstract available at http://papers.ssrn.com/sol3/papers.cfm%3Fabstract_id=1928963).

[14] Al-Aulaqi v. Obama Complaint for Declaratory and Injunctive Relief (violation of constitutional rights and international law -- targeted killing), available at https://www.aclu.org/files/assets/alaulaqi_v_obama_complaint_0.pdf

[15] Jeremy Scahill, Dirty Wars: The World is a Battlefield 371 (2013).

[16] Id.

[17] Id.

Copyright, Truthout. May not be reprinted without permission.

Ben Norton

Ben Norton is a freelance journalist and writer based in New York City. His work has been published in a variety of outlets. You can find his website at BenNorton.com. He tweets at @BenjaminNorton.