Harold Koh - Legal Adviser, US State Department 2009-13 HARDtalk

major victories against rebels. Now on BBC News, it's time for Hardtalk.

Welcome to HARDtalk. President Obama says the US needs to redefine

and recalibrate its strategic response to terrorism. From drone

strikes to the future of Guantanamo, the Obama administration has

consistently struggled to reconcile its stated values with the

realities of the so-called war on terror. We speak to Harold Koh who

was chief legal adviser at the US State Department throughout Obama's

first term. Did President Obama betray America's highest ideals in

Harold Koh, welcome to HARDtalk. Just a few days ago, your former

boss till recently your boss, Barack Obama made a speech about

national security, and counter terror policy. He said the

decisions we are making in the field of counter terror will define

the type of nation we leave to our children. Do you think there is

reason to be worried about the current legacy that is being left

to America's children by the framework of National security Law?

The more important question is whether it was a good speech to

give. I think it was. He said he had inherited a number of policies

he did not like. He had not been able to change them. He thought

there was defining him and he wanted to define a different league.

The key decision he made was to give the speech, it is a busy

speech, he could easily have not given the speech at all and let the

politics go on but he reached out to take on the issue. Secondly, he

said he would end this war with Al- Qaeda, the Taliban and associated

forces. I'm not interested in being a President who runs a poor pitch

will war. That was a significant statement. He said there was an

aberration or paradigm that had come into play after September 11

that had been deployed for the last 12 years, and that there is now

some movement to perpetuate it. He said I will not do that. Is it not

extraordinary, that he is making this speech in the first year of

his second term? Queue might have expected that speech to be made

maybe after a difficult first month trying to address these issues. He

has had a four-year presidency. You are suggesting to me the system as

he sees that it is as aberration will today as it was when he

inherited it? I disagree with you on two things. He made a speech

very similar to this and make 2,000. Than none. He implemented parts of

that speech. He faced a lot of resistance. It was the start of the

second term now, the question is will he accept defeat will go back

at it. It is a time will he is looking to waters legacy, he has

said he will go back at it. I will close Guantanamo Bay, I will

discipline drones and end the war. He did not have to do it, it is a

critical reception of his counter- terrorism policy to make it more

sustainable going forward. He has created a context in which we see

the first four years of his presidency we were intimately

involved as chief legal adviser as years of failure? Were due except

that? He pushed a rock up the hill but he did not get it there. That

is why you have eight years. Our friends in the UK have faced a lot

of challenges with regard to this alliance over the last 12 years.

The critical question is, do you want to give this President a

chance when he has taken on a new challenge. Or do you want to say he

will fail just like before. It is not just about the president, it is

about you, Harold Koh, a very highly respected and experienced

legal scholar. If a man of years of commitment to human rights law.

Here you were for four years, representing an administration

which was massively expanding the targeted killing the drones

programme, and administration also there was maintaining Guantanamo

Bay, keeping Kiat the more than 160 prisoners in definite legal limbo

without any access to due process, looking back at your for you

commitment to Barack Obama, D feel ashamed? Of course not. I worked as

hard as I could to achieve the results we got to. To discipline

the drones, close Guantanamo Bay. What's do you mean disciplining

drones? It expanded exponentially while you were sitting in the State

Department? The press here has largely inflated the numbers quoted

in an uncritical way they got from others. I will say this, I have

been a professor for many years, making policy is very difficult. It

is easy to talk about it when you are a journalist or professor,

actually pushing the bureaucracy to achieve results takes real resolve.

Sometimes you are only one person. An interesting philosophical point

to make, the legal scholar, writer, Jonathan Turley, he says this,

reflecting on the arc of your recent Korea but others as well. He

says leading academics, legal academics who fall from grace, he

says are often people will have responded to the year of power.

is a friend of mine. I have ten- year. I have had for many years. I

have no reason to respond to the attraction of power. My job is to

say the truth and do my very best. I had a kind and are represented

that kind. I do not hear my disagreements in public. I had a

kind, Hillary Clinton, who did an extraordinary job. We are getting

to where I wanted to be. Can we go in detail through some of the key

debates you were involved with, starting with drones. There's been

a lot of writing in which the decision to expand the drone

programme was made during the four years you were involved its stake

to palm. General James Cartwright, a former chair of the vice Chiefs

of Staff his name to her as someone who was an advocate of the drones

programme, saying you have no legal problem with it. You said it was

extra-judicial killing which is a phrase I find fascinating if you

did use it? Be it is hard to be the Aceh advocate of a programme when

I'm a lawyer. I defended the legality of the programme general

cut right was an architect of. We both struggled to keep it legal.

The question is, is the war declared on a small group of people,

they had killed thousands repeatedly, they were inaccessible

to law-enforcement, and instead of pursuing parts that were wrongly

taken, like invading Iraq or torture, or using military

commissions, the approach was to do what should have been done to that

group of people in the first place. In the context of law, was very

difficult but killing is regrettable but is a job of lawyers

to draw the line between lawful and unlawful killing in armed conflict.

That is what my job was. Your view that it was lawful based upon the

powers given to the executive by the Congress going back to

September 2001, and the notion the US was at war with Al-Qaeda, and

the Taliban, I understand you were convinced it was legitimate? It was

said by the supreme Court. You must have been aware that many powerful

legal voices disagreed, including the UN Special Report on extra-

judicial killing, but the most recent one has said the drone

strikes represent a may jib challenge to the international

legal system. Hold on. I accept that position. That does not mean

they are illegal. The question is, how you conduct an armed conflict

against a chance nationalist terror group consistent with domestic law

and laws of all. Even within your Parameters and interpretation of

the law There are two things important, you have to believe that

when you are using these aerial drone strikes you are hitting

senior leaders. This is supposed to be when last-resort, aimed at the

most important enemies in this war you believe is being conducted.

Second, you have to be absolutely convinced that civilians are not

being killed. On both scores, the Obama drone programme fails

miserably because the figures suggest that many of those killed.

Were foot soldiers. To unite those figures to be true? Her be senior

research from the new America Foundation on the ground and

Pakistan. Neither you or I have done the fieldwork they have done.

I have done a lot of field work on this. The numbers are hotly debated.

Let's take as a given nobody is perfectly accurate numbers. It's

take a second given as Barack Obama said the other day, the standard he

wants to apply is a near-certainty that there will be no civilian

strikes. Thirdly, the hard fact is that there have been civilian

casualties. Hundreds.Our I do not know that it is hundreds. You need

to verify those numbers. The important point here is that drones

are a tall, just like any tour of war. -- tour. Technology improves

and many people who say nothing about Farley's discriminant types

of weapons five bombs, this is a weapon that can be used in a

targeted way which is consistent with laws of war. You use the word

targeted, it reminds me of the Israeli government talking about

targeted killing. They have conducted over the years, sometimes

they do night, sometimes they leave it ambiguous, we know they've used

a policy of targeted killing overseas to eliminate what it

regards as enemies in an existential conflict. We have seen

other governments doing the same thing, like Iran, we strongly

suspect his conduct of the same policy. The fact the US does it

because it believes it is in an existential conflict, illegitimate

warders are not give licensed to other nations who want to do just

the same thing? That is why laws of warm. Let me ask you a question, at

the United States targeted the general who did Pearl Harbor, is

that an act of war? You want me to answer? Are I'm not going to answer

because I'm not a legal scholar. I don't know the international law.

To think it is illegitimate? Right now we are not facing a condition

like the Second world War. We are facing a series of questions which

ask the United States with it wants to behave in the international

arena in a way that legitimate it's the actions of governments that we

sometimes have a major problem with. That has a separate question.

is HARDtalk so let's talk up. In target

target us. We declare war and we target them back. In the context of

the Iran conflict it was declared by a domestic body like Congress.

Is it lawful to kill US citizens with these same drone attacks?

Depends on what they have done. can be lawful without any judicial

process? It can be lawful to assassinate US citizens? You're

making an argument I don't think you want to make which is that they

are per se. If Osama bin Laden was a British citizen and attacked the

UK, would you say his British nationality is a source of

immunity? I don't want to be the fountain of legal knowledge. I want

to turn to sources. President Obama said, "I don't believe it would be

constitutional for the government to target and kill any US citizens

with a drone or indod a shotgun -- indeed a shotgun without due

process." That's correct. That's a different question from someone who

is a leader of an opposing force who has attacked us, who has

immunity from killing in the context of war based on citizenship

alone. It isn't quite as clear-cut as you suggest. The previous line

of the speech. If you're going to quote me his speech. Read the part

of the speech where he points out the part I made. He said he

believed there was a way of justifying the killing. He said it

exactly the way I did. Nationality is not immunity is the war has been

lawfully declared. That has been applied to an al-Qaeda operative

who was eliminated in Yemen. I'm wondering what on earth the legal

justification for killing his son was? It was on your watch. I wonder

whether you looked inside your own legal conscience when that happened

and thought to yourself, "What the heck is going on here?" I don't

defend that and that was failure. He was not targeted. The situation

in Yemen is quite separate, as was reported last week by Holder. This

was someone who was plotting at a level to attack the US - the bomber

who had bombs in his underwear on Christmas day had communicated and

he was instructed to blow up his bomb and the airliner over the US.

That's not just talk. I understand what you're saying about this. He

was an important and senior figure in a group that was directly

threatening. I want to say this. At the time he was killed he had

engaged in more direct activity previously. I want to divert it to

the 16-year-old boy who was eliminated. I think you said it was

a mistake, right? He was not targeted and he should not have

been killed. So why has the prlt personally - because this is so --

President personally - because this is so important - why has the US

President not issued a full, frank and transparent apology for that?

What the President said last week is he will have to live with this.

Those who work for him cannot justify it. It was an error. And in

the course of armed conflict there there are errors of this nature. He

didn't say it was lawful. He didn't mention the boy's name. He said

there were civilian casualties and he would take responsibility for

those casualties. That's part of his job as President. Let's talk

about Guantanamo Bay. You have expressed some personal

reservations about the way in which the Obama Administration, during

your time at the State Department, failed to make good on its clear

pledge - paid with an executive order in the first few days of the

new administration - to close Guantanamo Bay down within one year.

Why was the pledge not kept? started along and got something

like 60 people off. Congress put umvarious restrictions and

roadblocks. There's difficulties in Yemen which is one of the places to

which many people were directed. There was a self-imposed moratorium

which was lifted last week. No-one would say Guantanamo should be open.

The real question is what will it outsider is saying, "Mr President,

if this means a showdown with the Congress, if it even means having

to threat toon veto the Pentagon's budget if that's the way it works

out, you have to do it now?" By all means. Having looked at his record,

you really think he's going to do that? I think he's committed

himself to do that. How big a stain do you think - To veto the budget

simply means they have to repath the budget by a two-thirds vote

over his veto. And that means it puts the burden back onto Congress

to exercise extrordinarily political will to override --

exextraordinaryinarily political will to override his will --

extraordinarily political will to override this. What you're saying

is more damning of his record in his first term because he could

have made that calculation, gone the extra mile, but he chose not to.

Many would say he chose not to because he didn't want to be

cornered as the Democratic President who is defending the

rights of prisoners in Guantanamo Bay, even if that was the right

legal ethical thing to be doing? Some of us have made mistakes in

our life and we tried to fix those mistakes. That's hard to do. It

requires will. It's an admirable thing. If you go back at something

that's unfinished business. don't have so much time and there's

so much fascinating legal work that you were involved in. As quick as

we can, I want to go through a couple of points. One is Libya -

ibluUN Security Council resolution which was -- the Libya UN Security

Council resolution which is where nations imposed the no-fly zone and

defended the citizens in a humanitarian cause - that was a

very interesting resolution. It was quite explicit. It talked about

protecting the civilian areas from threat of attack, excluding any

foreign occupation force from taking any part of Libyan territory

-? The Russians and Chinese now -- territory? The Russians and Chinese

now say that was abused by the US, the UK and other Western powers.

They have a point, haven't they? don't think so. It was a protection

resolution to stop him killing people? It wasn't a resolution that

said you could fire rockets at him? Those people are alive. Libyan

people are controlling their own country. I'm not sure what you need

to apologise about. It seems to me an interesting moment. The Chinese

and Russians have been under pressure to sign on to tougher UN

skuert resolution -- UN Security Council resolutions. They said they

were stung by what happened in Libya and they have learned a

lesson. I think the countries that have vetoed four resolutions that

would prevent the suffering of innocent civil swrpbz, they're the

people who have something -- civil swrpbz, they're the people who have

-- civilians, they're the people who have things to answer to.

have become a supporter of the US adhering more closely to trans

national legal frameworks, including the International

Criminal Court. Do you see any sign that the US led by Barack Obama is

serious about that? Look at our policy. When Barack Obama came in

look at it. Look at it now. Your not prepared to sign on and be a

part of the process? The policy when Obama took office was to make

the International Criminal Court fail. The fail is to engage with

the court and the US supports every ongoing case that's at the ICC

right now. Every single one. There's not a single prosecution to

which the US is opposed. That's a 180 degree turnarn. Do you think

the US should become a signetry? They are already. -- signatory?

They already are. Should they play a full part? The senate has to give

67 votes and I think we're some ways away from those 67 votes. So

for now a dramatic reversal of executive policy is the best that

can be achieved. I think this administration has brought it about.

Done get me wrong, this administration is not perfect. It's

a group of human beings trying to do their best. Compared to the last

administration, compare the mood, would you prefer the world be one

where Obama had not given the speech he gave last week, or one

where he committed himself in a new way to discipline drones and close

Guantanamo? I would rather live in a world where a prlt gives a speech