In a March 25 Los Angeles Times article, reporter Paul Richter ignored State Department legal adviser nominee Harold Hongju Koh's repeated references to “torture” in his criticism of the Bush administration's interrogation policies. Richter wrote that Koh is “one of the most vocal critics of the Bush administration's approach to the detention and trial of terrorism suspects, calling a 2002 memo justifying harsh interrogation methods a 'stain on our national reputation.' ” But Koh has repeatedly referred to the conduct sanctioned in the memo as “torture” -- a word the Times article did not use. Indeed, during the January 6, 2005, Senate Judiciary committee hearing at which Koh asserted that the memo “is a stain on our law, a stain on our national reputation,” he immediately followed that by calling it “a legal opinion that is so contrary to a zero tolerance policy, which has a definition of torture that would have exculpated Saddam Hussein, that reads the Commander in Chief power to remove Congress as a check on torture that turns Nuremberg on its head and that gives Government officials a license to be cruel is wrong from the beginning.”

During the hearing, which concerned then-White House counsel Alberto Gonzales' then-pending nomination as attorney general, Koh characterized the 2002 memo as “giv[ing] the Executive Branch a license to dehumanize, degrade, and act cruelly, notwithstanding the Fifth Amendment's rejection of government acts that shock the conscience and the Eighth Amendment's rejection of any 'cruel and unusual punishments.' ” In his testimony, Koh listed “five obvious failures” of the memo:

First, it asks, ''How close can we get to the line,'' when, in fact, it is supposed to be enforcing a zero tolerance policy.

Second, the way that it defines torture would permit many of the things that Saddam Hussein's forces did during his time as not torture. Just for example, the White House website lists that beating, pulling out of fingernails, burning with hot irons, suspension from ceiling fans were all acts of torture committed by Saddam Hussein's forces. Nevertheless, under the [former Assistant Attorney General Jay] Bybee memorandum, if they did not cause serious organ failure or death, they would not constitute torture.

Third, as I said, the memo grossly overreads the President's constitutional power to order torture. If the President has a constitutional power to order torture in the face of a criminal statute preventing it passed by Congress, it is not clear why he could not similarly order genocide or other kinds of acts.

Fourth, the memorandum says that executive officials can escape prosecution if they carrying out the President's orders as Commander in Chief. This is the ''following orders'' defense which was rejected in Nuremberg and is the very basis of our international criminal law.

And, finally, an important point, the Bybee memo essentially is very tolerant with regard to cruel, inhuman or degrading treatment. A convention against torture, and cruel, inhuman and degrading treatment is read to permit various kinds of cruel, inhuman, and degrading treatment. And even today there was some lack of clarity in Mr. Gonzales' answer about whether U.S. officials are barred from cruel, inhuman or degrading treatment.

Similarly, in a March 2008 Washington Monthly article, Koh described the memo as a " 'torture opinion' ... which concluded that U.S. officials can order the torture of suspected terrorists with impunity." He continued:

When the opinion was written, the governing policy was zero tolerance of torture. The new opinion essentially asked, “How close to the line can we come when abusing people?” It narrowly defined torture as "[p]hysical pain ... equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." Such a definition would exonerate torture techniques used by Saddam Hussein's security services, including electric shocks administered to the genitals and burning with blowtorches.

The opinion undermined the basic human rights principles set forth at Nuremberg. It also twisted the U.S. ratification of an international treaty against torture and cruel, inhuman, or degrading treatment, somehow arriving at the conclusion that the agreement condoned such abuses. In effect, the opinion licensed the executive branch to commit future Abu Ghraibs by degrading and dehumanizing detainees in U.S. custody, regardless of whether they hold any information of value in the war against terror.

From the March 25 Los Angeles Times article:

Harold Hongju Koh, an outspoken advocate of human rights and international law, has been chosen to be the top lawyer at the State Department.

Koh, dean at the Yale Law School, has been one of the most vocal critics of the Bush administration's approach to the detention and trial of terrorism suspects, calling a 2002 memo justifying harsh interrogation methods a “stain on our national reputation.”

If confirmed as State Department legal advisor, he would have a key role in dismantling the Bush administration's approach to that issue and others.

[...]

Koh has been among those who have argued that terrorism detainees should be handled through the federal court system. Critics of this approach contend it would give accused terrorists procedural advantages and a soapbox to preach their views. It also could jeopardize intelligence information and cooperation from other countries, critics believe.

Koh has advocated use of the Army Field Manual's guidelines for treatment of detainees and has opposed “enhanced” interrogation techniques. Obama has ordered the CIA to follow the manual, which prohibits controversial detention and interrogation methods.

Koh has opposed the practice of “rendition” of terrorism suspects to foreign governments, and has condemned the Bush administration's view that it needed wide latitude to prosecute terrorists. Some legal analysts say that Koh's rejection of the war on terrorism raises questions about whether he believes strikes by U.S. Predator drone aircraft into Pakistan are legal.