Ed Whelan once attacked State Department Legal Adviser Harold Koh -- last seen defending the legality of drone strikes against suspected terrorist targets in foreign countries -- of wanting to "depriv[e] American citizens of their powers of representative government by selectively imposing on them the favored policies of Europe’s leftist elites.”
Spencer Ackerman busted Whelan for recently noting the fundamental contradiction of a "legal transnationalist" endorsing America's right to fire missiles at anyone they feel like, anywhere in the world. Whelan responded by arguing that this is all part of Koh's dastardly plan:
The program of targeted killing by drone warfare is the centerpiece of President Obama’s counterterrorism strategy. That program was in effect before Harold Koh became State Department legal adviser. If Koh were to have determined that that program violated domestic and international law, he would have been indicting a host of executive-branch officials, from President Obama on down, for complicity in war crimes. Or, more likely, he would have been forced to leave his position before formalizing that determination.
In my extensive case against Koh (see collections here and here), I don’t think that I wrote anything that, fairly construed, would suggest my belief that Koh would take such a suicidal path. On the contrary, I credited Koh for bureaucratic “savvy”—for his skill at working “inside [the] bureaucracies and governmental structures” of the United States government “to promote the same changes inside organized government” that he has long been “urging from the outside” in his activist capacity as a “transnational norm entrepreneur.” Even for someone as aggressive and tenacious as I believe Koh to be, such savvy obviously entails not picking the wrong battle.
Like Spencer, I think Whelan's response simply further undermines his case. So Koh shouldn't have been selected as legal adviser because of radical beliefs Whelan thinks he has, but that he also admits that even if he has them, they would not have actually affected Koh doing his job. That's one, uh, strong argument. This is a bizarre genre of right-wing argument that we saw a lot of with regard to Barack Obama -- liberal figures all seem to have these secret radical beliefs they never actually act on, and won't act on, but America should be scared of them anyway. It's a litmus test for public office that can never be disproved, since even a failure to act on said radical beliefs while in office just means the individual in question is particularly good at hiding them.
To be fair to Whelan, though, despite his criticisms of Koh, he made a point of rejecting the pernicious smear that Koh thought "sharia law" could apply in the U.S.
-- A. Serwer
