14 Apr Koh Wars (Cont’d): A Useful Defense of Koh’s CEDAW Testimony
In the comments section of an earlier post, GW lawprof Edward Swaine raises a really good point in defense of Koh’s CEDAW testimony. Since I highlighted Whelan’s very tough post, it is worth highlighting Swaine’s very good point in defense (I am paraphrasing, but this is the gist):
In the context of a committee hearing where other folks, including Senator Boxer, have addressed the issue of the CEDAW committee, and where Koh also addressed the CEDAW committee in his answers to questions, it is unfair for Whelan to conclude that Koh was deliberately misleading the Senate in his omission of the committee’s reports in his written testimony.
I still think that Koh’s testimony was not his best moment. Drawing on his credibility as an expert in human rights law, it is sloppy not to go ahead and rebut those reports and explain why they shouldn’t matter. He didn’t even do that in his answers to questions. Given that he, as Whelan rightly points out, is a big fan of using these reports in some cases to help interpret the Constitution or treaties, his written testimony could easily have, and should have, addressed the issue better than he did. But Ed’s larger point remains. As far as I can tell, there is no real ethical issue here.
Julian: I find Ed Swaine’s defense of Koh’s testimony to be unpersuasive, for reasons that I hope to have time to elaborate later today.
As a former Congressional staff member, its important to remember that hearings are political theater, not academic workshops and should be judged by the standards of the form. Witnesses’ testimony serve as political statements, not rigorous academic work in which one has to address criticism to be at all persuasive.
Given the very limited attention span of the average U.S. Senator, politically savvy witnesses will present something closer to talking points in support of their favored policy outcome. Criticisms of the incompleteness of Dean Koh’s testimony seems to miss (or mislead about) the nature of this kind of political advocacy statement.
Every election, candidates take advantage of American ignorance of congressional procedure to make outlandish and distorted claims about what an opponent supports or voted for. I’d hope for more honesty and less demagoguery from the legal community.
Julian: Ed Swaine finds it “bizarre to suggest that [Koh’s] disclosure and forthrightness are to be judged solely based on Koh’s prepared testimony.” As you put it (in your initial comment responding to Swaine), Swaine thinks that Koh’s submitted testimony “should be construed in light of the whole hearing.” Swaine is confusing the question whether Koh’s testimony was forthright with the distinct question whether Koh actually expected that his testimony would deceive the Senate Foreign Relations Committee. By analogy, under Swaine’s logic, it would be a defense to a charge of perjury (rather than a bad joke) for the alleged perjurer to show that he knew or believed that the testimony of others would clearly discredit his false statement. Swaine’s defense also fails on the facts. Yes, a hypothetical attentive observer of the entire hearing would have reason to regard various of Koh’s assertions as not trustworthy. But beyond the fact that real senators and staffers flit in and out of hearings, the hearing hardly succeeded in dispelling the confusion that Koh’s material omissions caused. I also see nothing in Koh’s oral testimony that redeems the defects in his written testimony. Swaine contends that Koh “actually… Read more »
Julian, thanks for the gracious post. I think we will have to disagree about whether Koh’s testimony was “sloppy”; I really don’t think you or Ed Whelan come to grips with the nature of the exercise. It would be legitimate to challenge the accuracy of what Koh said (as opposed to his value judgments), but I don’t think what he said was inaccurate; it would be legitimate to point to inherent contradictions in his views, but I don’t think that’s been done (to put a complicated matter too briefly, citing CEDAW Committee pronouncements interpreting the treaty as relevant to a US constitutional inquiry, whatever one thinks of that argument, is different than a contention about what the treaty requires as a matter of law); it may be legitimate to criticize him were he participating in a conspiracy to hide significant information from the Senate, but I think I dealt with that. As to whether it was his “best moment,” I’m not sure I know how to evaluate that claim or its significance; if someone’s congressional testimony WAS his best moment I might be more worried. Mr. Whelan, thanks for the reply; I know you are busy. We completely disagree. To… Read more »
Mr. Swaine, I’ll limit myself to a few points: 1. Having worked as a Senate staffer for 2-1/2 years and having testified on several occasions before committees of Congress, I can attest that your understanding of the role of a witness’s written testimony is entirely wrong. It’s precisely in the written testimony (which usually has a generous page limit, if any) that the witness can develop many points that he won’t have time to make orally. 2. You say that you would write a law-review article in a manner very different from Koh’s testimony. Well, as my blog post explains, Koh expanded his testimony into a law-review article—and it has the same glaring misrepresentations and omissions. 3. You contended in your original comment that Koh in his oral testimony “actually did address the issue of the CEDAW Committee’s role and why it didn’t alter his analysis.” In my comment, I indicated that I thought that you were misrepresenting this important point. You provide no evidence for your contention in your lengthy reply. That’s hardly what I would consider engaging on “a higher plane of discussion.” 4. My post carefully documents the serious deficiencies in Koh’s… Read more »
Mr. Whelan, I think this exchange has diminishing returns, so please don’t take it amiss if I fail to keep this going much further. I seem to lack your, well, fervor. I also made the mistake of toggling over to your blog, where I learn that in your view I have misrepresented Koh’s oral testimony. I certainly don’t believe I have done so, but it illustrates to me the problem of keeping up with you here and in another venue that limits the right to reply. But to be hospitable, come over and have a cup of coffee sometime. I will not go over what I said before, but only address the points you chose to address. 1. My point was that you “misunderstand how to think about congressional testimony,” not that you hadn’t served your time. I take the point that witnesses may put in lengthier statements than what they are able to get out orally; fair enough, I didn’t mean to be denying that. But some seem to tailor their prepared remarks more to what they can get out orally, as seemed (approximately) to be the case here. I do not honestly know which is the norm, but… Read more »
Mr. Swaine, I will reply to your first and third numbered responses. But first a response to your prefatory comments: What you call my “fervor” is my exasperation at the poor quality of your arguments—among other things, your feigning to understand the hearing process when you evidently know little about it, your misrepresentation that Koh “actually did address the issue of the CEDAW Committee’s role and why it didn’t alter his analysis,” and your odd belief that Koh’s remarkable failure to address the existence and legal weight, if any, of the CEDAW committee reports is excused by his expectation that others would cite them. After complaining in your previous comment that I wasn’t informing Bench Memos readers of the back-and-forth between you and me, I took your invitation and posted a brief item on Bench Memos. You now claim that you had to “toggl[e] over” to Bench Memos to learn my view that you misrepresented Koh’s oral testimony. But I have stated that view clearly in both of my previous comments on this blog post (as well as in a private e-mail to you), so your claim that you first learned of it in my Bench Memos post is… Read more »
Thanks for the reply and the email. Let’s talk about our mutual exasperation with one another in some other venue; I am certain we have only scratched the surface of all the bad things that might be said, but there’s no point in doing it publicly. On the merits, I see a difference between finding relevant what various committees say about treaties on which they are supposedly expert, and worrying about the legal effect of ratifying a treaty. As you suggest, someone arguing that Committee positions were meaningful in constitutional interpretation could not say that they were an irrelevancy; he or she *may* also be inclined toward regarding them as having some interpretive weight in understanding the treaty as well. (Though to report in a brief that a treaty has been interpreted in a particular fashion by its supervisory body is not the same thing as saying that the interpretation is due particular weight — let alone that it is entitled to the same weight as that of the Senate or executive branch.) There is, at that level, a tension. But I believe it would be consistent for that person to say, when asked whether the treaty should be ratified,… Read more »
Shorter Ed Whelan: Disagreeing with me = poor quality of argumentation.
We should also be clear about how the amicus actually uses the CEDAW Committee’s Interpretations. The brief is only 30 pages; the CEDAW Committee’s Interpretations are referenced only once in the main body of the brief, and twice in one footnote to source the citation on p. 25. The reference is descriptive (Mr. Whelan has excerpted that and the footnote previously).
I may not have been schooled in the Ed Whelan academy of high quality legal argumentation, but I doubt any advocate would bury his most persuasive, national sovereignty destroying authority at the back of his brief in a footnote that is roughly the size of the one giving thanks to the students in the clinic who helped write it (see p. 30). If the argument is that Harold Koh should have disclosed to the Senate that CEDAW Committee Interpretations could eventually make back-of-the-brief string cite material in an amicus then that’s some pretty weak tea for a filibuster.
And Mr. Swaine, don’t think that interested members of the legal community and the public don’t read this deep into the comments and find these discussions interesting and important.
I will simply repeat one of my several examples (all of which reflect the same pattern): In his written testimony, Koh labeled one of the claims of CEDAW opponents “preposterous” even though (1) that claim was squarely founded on a CEDAW committee statement that no one contends Koh didn’t know about; yet Koh (2) did not acknowledge the CEDAW committee statement and (3) did not explain his view of its legal status; and (4) Koh roughly contemporaneously relied on CEDAW committee statements of the same nature in support of arguments in his amicus brief in Lawrence. Swaine tries to defend fact 2 on the ground that Koh reasonably anticipated that others would make the Senate Foreign Relations Committee aware of the CEDAW committee statement. That defense ignores the confused nature of a hearing (with senators and staffers flitting in and out) and the confusion naturally resulting from an esteemed academic figure’s using his prestige and authority to dismiss a claim as “preposterous.” In an apparent effort to deal with fact 3, Swaine mistakenly insinuated that Koh’s oral testimony addressed the matter; it didn’t. And as for fact 4, Swaine argues that Koh’s positions “can be easily reconciled.” Perhaps they… Read more »