The University of Chicago’s Eric Posner argues in The New Republic that State Department legal adviser Harold Koh and former Office of Legal Counsel attorney John Yoo are “two peas in a pod.” In his view, both are continuing a long-standing executive practice of using the executive’s authority to engage in legal interpretations that advance the Administration’s policies and constitutional vision. His provocative article begins:
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.