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.