You know, there’s a vacancy on the 9th Circuit Court of Appeals for which no one has been nominated. Koh might be a nice fit with Jay Bybee.

Amen, EW!
Apparently, being close to the middle of the action has a very corrupting influence. BTW, I wonder if the corrupt influence’s name is John Brennan?

Bob in AZ

The system Harold Koh was referring to in the 2002 quote is actually consistent with his current behavior, and doesn’t consist of judicial review. It consists of making use of the laws of war and the principle of distinction.

But the problem with applying it to the CIA is that it’s arguable that the CIA isn’t our nation’s military at all, and shouldn’t be. Even many people in our military would argue that.

As for arguing using the laws of war, there are rules to it, and the government — and Harold Koh — can still be asked to justify each and every name on their lists. It is not without process, it just doesn’t involve the courts. It involves customary and statutory international humanitarian law. People can’t be targeted unless they are engaged in an armed conflict in an enemy continuous combat function or are part of an identifiable enemy military force. So, for instance, if Anwar al-Awlaki is targeted for propaganda on the internet and nothing else, that’s a violation of international law, because propagandists are specifically classed as protected civilians.

But your quotes have not shown that Harold Koh changed his mind, because he wasn’t referring to due process in courts in his 2002 quote.

ew writes:

“…But now, after seeing a bunch of classified information …”

ain’t secrecy wonderful. just think about it: it requires us to trust each other more than we might otherwise.

@emptywheel: Amen. A standard indicator of failing integrity in a corporate bureaucracy is when a senior bureaucrat protects his superiors (or his own place among them) by engaging in the fantasy that today’s facts, opinions and orders are identical to yesterday’s different ones, and that no one could argue the contrary. (A lower-level bureaucrat would not survive with that approach.) In a corporation, it is an indicator of departmental or corporate corruption or a prelude to bankruptcy.

Given Mr. Koh’s prior position at the top of the legal academy, his public insistence about his consistency is a significant failing. Emerson put it best over a century and a half ago: “A foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”

As you imply, this small example highlights the falsity of another idea beholden of the power hungry and the monopolist – that self-regulation is sufficient to ensure probity and fair dealing, and that external regulation by a disinterested party is merely playing in God’s playground without knowing the rules or having the right toys. In that regard, there’s little difference among Mr. Obama, Mr. Cheney and John D. Rockefeller.

Hey, please look at this? Due process and secrecy question, disappearing in front of us?

I was just talking yesterday about how constitutional due process includes juries empowered to nullify prosecutions they find unjust, and how we are not allowed to know that anymore. Juries still have the power, that part of the Constitution has never been amended, the Supreme Court just let it be hid and it only gets crazier and crazier. As wikipedia used to put it (till December 2011 revision):

Sparf vs US: The case has occasionally been simplistically described as: Since the law has no way to prevent the jury from judging the law, they shall have that right, but only if they do not know it.

I referred yesterday to Scott Horton’s February 2011 article in Harper’s about Julian Heicklen, the retired professor who was arrested for leafleting about jury nullification outside a New York courthouse. Horton’s article was about the lunacy of that prosecution that turns the First Amendment and our history on its head.

I wanted to see if Horton had posted a followup, so I searched Harper’s for “Horton jury.” Harper’s searches all the way back to 1850, sorts by relevance, and says there are 14 results. But only 13 show, and the Heicklen article is not among them.

How can that be? It should be there, and it should be at the top.

Do you get the same result I do? Is this one of those bubble things, where search engines show different results for different people?

Or is there some way for the government (courts? DOJ? pixie dust?) or its agents (contractors?) or someone else (1%) to disappear this kind of result on a private website? Scott Horton’s opinion carries real weight. If it is hidden, that is eye-poppingly consistent with the court’s hiding knowledge of jury nullification from jurors, and of Heicklen’s prosecution, in the first place.

I’m not saying that the Constitution and its due processes can’t grow and change. I’m saying it’s happened without due process, without public review and debate, without votes, without checking and balancing by the other branches and the people, without consensus and amendment, without knowledge, and so it is illegitimate. This strange result from Harper’s makes me wonder how far this can go — ?

“Now is the seed time of continental union, faith and honor. The least fracture now will be like a name engraved with the point of a pin on the tender rind of a young oak; the wound will enlarge with the tree, and posterity read it in full grown characters.” –Thomas Paine, Common Sense

@harpie: Would you try “Horton jury” too (I linked)? I’m still getting the same result today, and I don’t know how to account for the missing 14th result. I actually don’t know how to evaluate this. I found Horton’s article myself for the first time the other day from a link on wikipedia. I was surprised I hadn’t known of it, he’s a favorite of mine and the topic of jury nullification has been a thing of mine for a long time. Sighs for the holes in my vision — and then this happens.

@SpanishInquisition: Not so fast.

According to the government, are in a “common Article 3 armed conflict” with al Qaeda. In such things, one party can still be liable for criminal prosecutions. The “front lines” are still the battlefields. There are certain persons in such conflicts who can be targeted off the battlefield.

Common Article 3 specifically says that it doesn’t stop any criminal law from functioning on one party by the other: “The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

@harpie: I just tried plain “jury” and it says there are 200 matches, and I see the Heicklen article is 8th from the top. Well, dunno. Thanks for checking.

@thatvisionthing: Yeah. I tried that too, with the same result…just wierd.

@ondelette: Hi ondelette! Which persons “can be targeted off the battlefield”?

@ondelette: And just because the government claims something, you believe it? It was a Bushian claim that is ridiculous as it is confined within one country, not sending drones all over world. What would for instance be Article 3 would have been the Civil War (if there had been a Geneva Convention then) between the US government and the rebel Confederates, but that is not all like Al Qaeda. Article 3 is specifically not international character. However, since you do believe it is Article 3, does that mean you’d support domestic assassinations when the government accuses someone of being a terrorist? Afterall that would be far more justifiable under Article 3 than bombing another country.

@harpie:

imo, nobody has ever topped the Onion on this war:

“America’s enemy, be it Osama bin Laden, Saddam Hussein, the Taliban, a multinational coalition of terrorist organizations, any of a rogue’s gallery of violent Islamic fringe groups, or an entirely different, non-Islamic aggressor we’ve never even heard of… be warned,” Bush said during an 11-minute speech from the Oval Office. “The United States is preparing to strike, directly and decisively, against you, whoever you are, just as soon as we have a rough idea of your identity and a reasonably decent estimate as to where your base is located.”

Added Bush: “That is, assuming you have a base.”

Bush is acting with the full support of Congress, which on Sept. 14 authorized him to use any necessary force against the undetermined attackers.

@spanishinquisition: You’re making a mistake. Article 3 is considered to be the law that applies when other international humanitarian law does not apply, like Martens. Are you saying that nothing applies or that there is no conflict? The Congress very clearly declared one, and the Court very clearly stated that IHL applied and that at minimum Article 3 applied.

If you are saying nothing applies, then you, not me are making the “Bushian” claim. That’s exactly what John Yoo wrote up and George W. Bush proclaimed in January of 2002. That’s a complete fast track to torture, or was the last time.