:00:15. > :00:18.major victories against rebels. Now on BBC News, it's time for Hardtalk.
:00:18. > :00:21.Welcome to HARDtalk. President Obama says the US needs to redefine
:00:21. > :00:23.and recalibrate its strategic response to terrorism. From drone
:00:23. > :00:26.strikes to the future of Guantanamo, the Obama administration has
:00:26. > :00:36.consistently struggled to reconcile its stated values with the
:00:36. > :00:38.
:00:38. > :00:41.realities of the so-called war on terror. We speak to Harold Koh who
:00:41. > :00:43.was chief legal adviser at the US State Department throughout Obama's
:00:43. > :00:53.first term. Did President Obama betray America's highest ideals in
:00:53. > :01:23.
:01:23. > :01:28.Harold Koh, welcome to HARDtalk. Just a few days ago, your former
:01:28. > :01:32.boss till recently your boss, Barack Obama made a speech about
:01:32. > :01:37.national security, and counter terror policy. He said the
:01:37. > :01:41.decisions we are making in the field of counter terror will define
:01:41. > :01:45.the type of nation we leave to our children. Do you think there is
:01:45. > :01:50.reason to be worried about the current legacy that is being left
:01:50. > :01:53.to America's children by the framework of National security Law?
:01:53. > :01:58.The more important question is whether it was a good speech to
:01:58. > :02:03.give. I think it was. He said he had inherited a number of policies
:02:03. > :02:06.he did not like. He had not been able to change them. He thought
:02:06. > :02:11.there was defining him and he wanted to define a different league.
:02:11. > :02:16.The key decision he made was to give the speech, it is a busy
:02:16. > :02:20.speech, he could easily have not given the speech at all and let the
:02:20. > :02:24.politics go on but he reached out to take on the issue. Secondly, he
:02:24. > :02:29.said he would end this war with Al- Qaeda, the Taliban and associated
:02:29. > :02:34.forces. I'm not interested in being a President who runs a poor pitch
:02:34. > :02:38.will war. That was a significant statement. He said there was an
:02:38. > :02:43.aberration or paradigm that had come into play after September 11
:02:43. > :02:49.that had been deployed for the last 12 years, and that there is now
:02:49. > :02:56.some movement to perpetuate it. He said I will not do that. Is it not
:02:56. > :03:00.extraordinary, that he is making this speech in the first year of
:03:00. > :03:05.his second term? Queue might have expected that speech to be made
:03:05. > :03:10.maybe after a difficult first month trying to address these issues. He
:03:10. > :03:14.has had a four-year presidency. You are suggesting to me the system as
:03:14. > :03:19.he sees that it is as aberration will today as it was when he
:03:19. > :03:24.inherited it? I disagree with you on two things. He made a speech
:03:24. > :03:30.very similar to this and make 2,000. Than none. He implemented parts of
:03:30. > :03:34.that speech. He faced a lot of resistance. It was the start of the
:03:34. > :03:40.second term now, the question is will he accept defeat will go back
:03:40. > :03:45.at it. It is a time will he is looking to waters legacy, he has
:03:45. > :03:50.said he will go back at it. I will close Guantanamo Bay, I will
:03:50. > :03:54.discipline drones and end the war. He did not have to do it, it is a
:03:54. > :04:00.critical reception of his counter- terrorism policy to make it more
:04:00. > :04:03.sustainable going forward. He has created a context in which we see
:04:03. > :04:08.the first four years of his presidency we were intimately
:04:08. > :04:13.involved as chief legal adviser as years of failure? Were due except
:04:13. > :04:21.that? He pushed a rock up the hill but he did not get it there. That
:04:21. > :04:25.is why you have eight years. Our friends in the UK have faced a lot
:04:26. > :04:30.of challenges with regard to this alliance over the last 12 years.
:04:30. > :04:36.The critical question is, do you want to give this President a
:04:36. > :04:42.chance when he has taken on a new challenge. Or do you want to say he
:04:42. > :04:47.will fail just like before. It is not just about the president, it is
:04:47. > :04:52.about you, Harold Koh, a very highly respected and experienced
:04:52. > :04:58.legal scholar. If a man of years of commitment to human rights law.
:04:58. > :05:02.Here you were for four years, representing an administration
:05:03. > :05:07.which was massively expanding the targeted killing the drones
:05:07. > :05:16.programme, and administration also there was maintaining Guantanamo
:05:16. > :05:20.Bay, keeping Kiat the more than 160 prisoners in definite legal limbo
:05:20. > :05:26.without any access to due process, looking back at your for you
:05:26. > :05:31.commitment to Barack Obama, D feel ashamed? Of course not. I worked as
:05:31. > :05:37.hard as I could to achieve the results we got to. To discipline
:05:37. > :05:41.the drones, close Guantanamo Bay. What's do you mean disciplining
:05:41. > :05:50.drones? It expanded exponentially while you were sitting in the State
:05:50. > :05:55.Department? The press here has largely inflated the numbers quoted
:05:55. > :05:59.in an uncritical way they got from others. I will say this, I have
:05:59. > :06:04.been a professor for many years, making policy is very difficult. It
:06:04. > :06:09.is easy to talk about it when you are a journalist or professor,
:06:09. > :06:13.actually pushing the bureaucracy to achieve results takes real resolve.
:06:13. > :06:20.Sometimes you are only one person. An interesting philosophical point
:06:20. > :06:25.to make, the legal scholar, writer, Jonathan Turley, he says this,
:06:25. > :06:31.reflecting on the arc of your recent Korea but others as well. He
:06:31. > :06:40.says leading academics, legal academics who fall from grace, he
:06:40. > :06:46.says are often people will have responded to the year of power.
:06:46. > :06:51.is a friend of mine. I have ten- year. I have had for many years. I
:06:51. > :06:57.have no reason to respond to the attraction of power. My job is to
:06:57. > :07:04.say the truth and do my very best. I had a kind and are represented
:07:04. > :07:08.that kind. I do not hear my disagreements in public. I had a
:07:08. > :07:13.kind, Hillary Clinton, who did an extraordinary job. We are getting
:07:13. > :07:17.to where I wanted to be. Can we go in detail through some of the key
:07:17. > :07:21.debates you were involved with, starting with drones. There's been
:07:21. > :07:25.a lot of writing in which the decision to expand the drone
:07:25. > :07:32.programme was made during the four years you were involved its stake
:07:32. > :07:35.to palm. General James Cartwright, a former chair of the vice Chiefs
:07:35. > :07:40.of Staff his name to her as someone who was an advocate of the drones
:07:40. > :07:46.programme, saying you have no legal problem with it. You said it was
:07:46. > :07:51.extra-judicial killing which is a phrase I find fascinating if you
:07:51. > :07:55.did use it? Be it is hard to be the Aceh advocate of a programme when
:07:55. > :08:01.I'm a lawyer. I defended the legality of the programme general
:08:01. > :08:05.cut right was an architect of. We both struggled to keep it legal.
:08:05. > :08:09.The question is, is the war declared on a small group of people,
:08:09. > :08:15.they had killed thousands repeatedly, they were inaccessible
:08:15. > :08:20.to law-enforcement, and instead of pursuing parts that were wrongly
:08:20. > :08:24.taken, like invading Iraq or torture, or using military
:08:24. > :08:31.commissions, the approach was to do what should have been done to that
:08:32. > :08:36.group of people in the first place. In the context of law, was very
:08:36. > :08:41.difficult but killing is regrettable but is a job of lawyers
:08:41. > :08:49.to draw the line between lawful and unlawful killing in armed conflict.
:08:49. > :08:54.That is what my job was. Your view that it was lawful based upon the
:08:54. > :08:58.powers given to the executive by the Congress going back to
:08:58. > :09:05.September 2001, and the notion the US was at war with Al-Qaeda, and
:09:05. > :09:10.the Taliban, I understand you were convinced it was legitimate? It was
:09:10. > :09:17.said by the supreme Court. You must have been aware that many powerful
:09:17. > :09:22.legal voices disagreed, including the UN Special Report on extra-
:09:22. > :09:26.judicial killing, but the most recent one has said the drone
:09:26. > :09:34.strikes represent a may jib challenge to the international
:09:34. > :09:43.legal system. Hold on. I accept that position. That does not mean
:09:43. > :09:48.they are illegal. The question is, how you conduct an armed conflict
:09:48. > :09:53.against a chance nationalist terror group consistent with domestic law
:09:53. > :09:58.and laws of all. Even within your Parameters and interpretation of
:09:58. > :10:00.the law There are two things important, you have to believe that
:10:00. > :10:05.when you are using these aerial drone strikes you are hitting
:10:05. > :10:09.senior leaders. This is supposed to be when last-resort, aimed at the
:10:09. > :10:14.most important enemies in this war you believe is being conducted.
:10:14. > :10:20.Second, you have to be absolutely convinced that civilians are not
:10:20. > :10:26.being killed. On both scores, the Obama drone programme fails
:10:26. > :10:33.miserably because the figures suggest that many of those killed.
:10:33. > :10:36.Were foot soldiers. To unite those figures to be true? Her be senior
:10:36. > :10:40.research from the new America Foundation on the ground and
:10:40. > :10:47.Pakistan. Neither you or I have done the fieldwork they have done.
:10:47. > :10:52.I have done a lot of field work on this. The numbers are hotly debated.
:10:52. > :10:56.Let's take as a given nobody is perfectly accurate numbers. It's
:10:56. > :11:00.take a second given as Barack Obama said the other day, the standard he
:11:00. > :11:05.wants to apply is a near-certainty that there will be no civilian
:11:05. > :11:12.strikes. Thirdly, the hard fact is that there have been civilian
:11:12. > :11:17.casualties. Hundreds.Our I do not know that it is hundreds. You need
:11:17. > :11:25.to verify those numbers. The important point here is that drones
:11:25. > :11:30.are a tall, just like any tour of war. -- tour. Technology improves
:11:30. > :11:37.and many people who say nothing about Farley's discriminant types
:11:37. > :11:44.of weapons five bombs, this is a weapon that can be used in a
:11:44. > :11:48.targeted way which is consistent with laws of war. You use the word
:11:48. > :11:54.targeted, it reminds me of the Israeli government talking about
:11:54. > :11:58.targeted killing. They have conducted over the years, sometimes
:11:58. > :12:02.they do night, sometimes they leave it ambiguous, we know they've used
:12:02. > :12:07.a policy of targeted killing overseas to eliminate what it
:12:07. > :12:11.regards as enemies in an existential conflict. We have seen
:12:11. > :12:15.other governments doing the same thing, like Iran, we strongly
:12:15. > :12:20.suspect his conduct of the same policy. The fact the US does it
:12:20. > :12:23.because it believes it is in an existential conflict, illegitimate
:12:23. > :12:30.warders are not give licensed to other nations who want to do just
:12:30. > :12:35.the same thing? That is why laws of warm. Let me ask you a question, at
:12:35. > :12:40.the United States targeted the general who did Pearl Harbor, is
:12:40. > :12:45.that an act of war? You want me to answer? Are I'm not going to answer
:12:45. > :12:52.because I'm not a legal scholar. I don't know the international law.
:12:52. > :12:56.To think it is illegitimate? Right now we are not facing a condition
:12:56. > :13:00.like the Second world War. We are facing a series of questions which
:13:01. > :13:05.ask the United States with it wants to behave in the international
:13:05. > :13:11.arena in a way that legitimate it's the actions of governments that we
:13:11. > :13:17.sometimes have a major problem with. That has a separate question.
:13:17. > :13:22.is HARDtalk so let's talk up. In target
:13:22. > :13:28.target us. We declare war and we target them back. In the context of
:13:28. > :13:38.the Iran conflict it was declared by a domestic body like Congress.
:13:38. > :13:49.
:13:49. > :13:56.Is it lawful to kill US citizens with these same drone attacks?
:13:56. > :14:01.Depends on what they have done. can be lawful without any judicial
:14:01. > :14:07.process? It can be lawful to assassinate US citizens? You're
:14:07. > :14:12.making an argument I don't think you want to make which is that they
:14:12. > :14:18.are per se. If Osama bin Laden was a British citizen and attacked the
:14:18. > :14:24.UK, would you say his British nationality is a source of
:14:24. > :14:29.immunity? I don't want to be the fountain of legal knowledge. I want
:14:30. > :14:33.to turn to sources. President Obama said, "I don't believe it would be
:14:33. > :14:42.constitutional for the government to target and kill any US citizens
:14:42. > :14:45.with a drone or indod a shotgun -- indeed a shotgun without due
:14:45. > :14:51.process." That's correct. That's a different question from someone who
:14:51. > :14:57.is a leader of an opposing force who has attacked us, who has
:14:57. > :15:04.immunity from killing in the context of war based on citizenship
:15:04. > :15:08.alone. It isn't quite as clear-cut as you suggest. The previous line
:15:08. > :15:12.of the speech. If you're going to quote me his speech. Read the part
:15:12. > :15:16.of the speech where he points out the part I made. He said he
:15:16. > :15:25.believed there was a way of justifying the killing. He said it
:15:25. > :15:31.exactly the way I did. Nationality is not immunity is the war has been
:15:31. > :15:41.lawfully declared. That has been applied to an al-Qaeda operative
:15:41. > :15:41.
:15:41. > :15:46.who was eliminated in Yemen. I'm wondering what on earth the legal
:15:46. > :15:51.justification for killing his son was? It was on your watch. I wonder
:15:51. > :15:56.whether you looked inside your own legal conscience when that happened
:15:56. > :16:04.and thought to yourself, "What the heck is going on here?" I don't
:16:04. > :16:11.defend that and that was failure. He was not targeted. The situation
:16:11. > :16:17.in Yemen is quite separate, as was reported last week by Holder. This
:16:17. > :16:23.was someone who was plotting at a level to attack the US - the bomber
:16:24. > :16:31.who had bombs in his underwear on Christmas day had communicated and
:16:31. > :16:40.he was instructed to blow up his bomb and the airliner over the US.
:16:40. > :16:45.That's not just talk. I understand what you're saying about this. He
:16:45. > :16:51.was an important and senior figure in a group that was directly
:16:51. > :16:58.threatening. I want to say this. At the time he was killed he had
:16:58. > :17:02.engaged in more direct activity previously. I want to divert it to
:17:02. > :17:06.the 16-year-old boy who was eliminated. I think you said it was
:17:06. > :17:11.a mistake, right? He was not targeted and he should not have
:17:11. > :17:18.been killed. So why has the prlt personally - because this is so --
:17:18. > :17:24.President personally - because this is so important - why has the US
:17:24. > :17:29.President not issued a full, frank and transparent apology for that?
:17:29. > :17:36.What the President said last week is he will have to live with this.
:17:36. > :17:42.Those who work for him cannot justify it. It was an error. And in
:17:42. > :17:48.the course of armed conflict there there are errors of this nature. He
:17:48. > :17:53.didn't say it was lawful. He didn't mention the boy's name. He said
:17:53. > :17:58.there were civilian casualties and he would take responsibility for
:17:58. > :18:02.those casualties. That's part of his job as President. Let's talk
:18:02. > :18:05.about Guantanamo Bay. You have expressed some personal
:18:05. > :18:11.reservations about the way in which the Obama Administration, during
:18:11. > :18:17.your time at the State Department, failed to make good on its clear
:18:18. > :18:23.pledge - paid with an executive order in the first few days of the
:18:23. > :18:28.new administration - to close Guantanamo Bay down within one year.
:18:28. > :18:35.Why was the pledge not kept? started along and got something
:18:35. > :18:38.like 60 people off. Congress put umvarious restrictions and
:18:38. > :18:43.roadblocks. There's difficulties in Yemen which is one of the places to
:18:43. > :18:48.which many people were directed. There was a self-imposed moratorium
:18:48. > :18:57.which was lifted last week. No-one would say Guantanamo should be open.
:18:57. > :19:02.The real question is what will it outsider is saying, "Mr President,
:19:02. > :19:08.if this means a showdown with the Congress, if it even means having
:19:08. > :19:16.to threat toon veto the Pentagon's budget if that's the way it works
:19:16. > :19:19.out, you have to do it now?" By all means. Having looked at his record,
:19:19. > :19:25.you really think he's going to do that? I think he's committed
:19:25. > :19:31.himself to do that. How big a stain do you think - To veto the budget
:19:31. > :19:37.simply means they have to repath the budget by a two-thirds vote
:19:37. > :19:42.over his veto. And that means it puts the burden back onto Congress
:19:42. > :19:47.to exercise extrordinarily political will to override --
:19:47. > :19:51.exextraordinaryinarily political will to override his will --
:19:51. > :19:56.extraordinarily political will to override this. What you're saying
:19:56. > :20:00.is more damning of his record in his first term because he could
:20:00. > :20:05.have made that calculation, gone the extra mile, but he chose not to.
:20:06. > :20:10.Many would say he chose not to because he didn't want to be
:20:10. > :20:14.cornered as the Democratic President who is defending the
:20:14. > :20:19.rights of prisoners in Guantanamo Bay, even if that was the right
:20:19. > :20:25.legal ethical thing to be doing? Some of us have made mistakes in
:20:25. > :20:30.our life and we tried to fix those mistakes. That's hard to do. It
:20:31. > :20:34.requires will. It's an admirable thing. If you go back at something
:20:34. > :20:38.that's unfinished business. don't have so much time and there's
:20:38. > :20:45.so much fascinating legal work that you were involved in. As quick as
:20:45. > :20:50.we can, I want to go through a couple of points. One is Libya -
:20:50. > :20:56.ibluUN Security Council resolution which was -- the Libya UN Security
:20:56. > :20:59.Council resolution which is where nations imposed the no-fly zone and
:20:59. > :21:03.defended the citizens in a humanitarian cause - that was a
:21:03. > :21:09.very interesting resolution. It was quite explicit. It talked about
:21:09. > :21:16.protecting the civilian areas from threat of attack, excluding any
:21:16. > :21:21.foreign occupation force from taking any part of Libyan territory
:21:21. > :21:26.-? The Russians and Chinese now -- territory? The Russians and Chinese
:21:26. > :21:36.now say that was abused by the US, the UK and other Western powers.
:21:36. > :21:37.
:21:37. > :21:42.They have a point, haven't they? don't think so. It was a protection
:21:42. > :21:48.resolution to stop him killing people? It wasn't a resolution that
:21:48. > :21:52.said you could fire rockets at him? Those people are alive. Libyan
:21:52. > :21:56.people are controlling their own country. I'm not sure what you need
:21:56. > :22:05.to apologise about. It seems to me an interesting moment. The Chinese
:22:05. > :22:09.and Russians have been under pressure to sign on to tougher UN
:22:09. > :22:15.skuert resolution -- UN Security Council resolutions. They said they
:22:15. > :22:22.were stung by what happened in Libya and they have learned a
:22:22. > :22:26.lesson. I think the countries that have vetoed four resolutions that
:22:26. > :22:33.would prevent the suffering of innocent civil swrpbz, they're the
:22:33. > :22:38.people who have something -- civil swrpbz, they're the people who have
:22:38. > :22:43.-- civilians, they're the people who have things to answer to.
:22:43. > :22:47.have become a supporter of the US adhering more closely to trans
:22:47. > :22:52.national legal frameworks, including the International
:22:52. > :22:59.Criminal Court. Do you see any sign that the US led by Barack Obama is
:22:59. > :23:05.serious about that? Look at our policy. When Barack Obama came in
:23:05. > :23:10.look at it. Look at it now. Your not prepared to sign on and be a
:23:10. > :23:15.part of the process? The policy when Obama took office was to make
:23:15. > :23:22.the International Criminal Court fail. The fail is to engage with
:23:22. > :23:26.the court and the US supports every ongoing case that's at the ICC
:23:26. > :23:32.right now. Every single one. There's not a single prosecution to
:23:32. > :23:38.which the US is opposed. That's a 180 degree turnarn. Do you think
:23:38. > :23:44.the US should become a signetry? They are already. -- signatory?
:23:44. > :23:49.They already are. Should they play a full part? The senate has to give
:23:49. > :23:53.67 votes and I think we're some ways away from those 67 votes. So
:23:53. > :23:57.for now a dramatic reversal of executive policy is the best that
:23:57. > :24:03.can be achieved. I think this administration has brought it about.
:24:03. > :24:08.Done get me wrong, this administration is not perfect. It's
:24:08. > :24:11.a group of human beings trying to do their best. Compared to the last
:24:11. > :24:15.administration, compare the mood, would you prefer the world be one
:24:15. > :24:21.where Obama had not given the speech he gave last week, or one
:24:21. > :24:25.where he committed himself in a new way to discipline drones and close
:24:25. > :24:32.Guantanamo? I would rather live in a world where a prlt gives a speech