Koh Wars (Cont’d): A Useful Defense of Koh’s CEDAW Testimony

by Julian Ku

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.

http://opiniojuris.org/2009/04/14/koh-wars-contd-a-useful-defense-of-kohs-cedaw-testimony/

11 Responses

  1. 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.

  2. 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.

  3. 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 did address the issue of the CEDAW Committee’s role and why it didn’t alter his analysis.”  Perhaps I’m somehow missing it, but although Koh does make a couple comments about the CEDAW committee, I see nothing along the line that Swaine suggests.
     
    You are right, Julian, that by failing to explain the status of the CEDAW committee (and to address its various statements that cut against his assertions) in his written testimony, Koh didn’t live up to the role that one would expect from an academic expert.  But Koh’s failing was worse than being an advocate.  He provided the sort of advocacy that helps earn a lawyer a reputation as a shyster.

  4. 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 be brief, the gist of your post was that Koh deliberately hid the ball from the Senate.  That argument, which you present as logically compelled, depends in part on an abbreviated legal analysis (the notion that, because Koh regards the Committee as important, it somehow qualified his statements as to what the treaty required, and how the Senate could limit any adverse affects on US law) and a misunderstanding of how to think about congressional testimony.  Were I writing a law review article on CEDAW and its implications for the U.S., I would myself address the Committee’s role, because I find it interesting and relevant; I would try to provide a reasonably complete, painfully exact, stand-alone analysis, though I would undoubtedly make many compromises for reasons of space, and matters might be different if I were essentially publishing a speech.  The function of prepared congressional testimony is different: among other things, the witness knows that she or he has limited time and space to address key points (you will have noted the repeated admonition to keep to 5-6 minutes in the live testimony, aka the anticipated recital of the prepared statements), and knows that his or her testimony will be considered together with those of others.  I don’t read you to be denying, save by implication, that Koh would have legitimately expected that the participants in the hearing would be aware of the CEDAW Committee controversy; I take it that it’s only for reasons of space that you refrain from condemning all the other participants in that hearing for failing to cover the waterfront in their own testimonies, including the points Koh made concerning what the treaty required. (“A pox on them all,” I hear you say.)  As it happens, the hearing print vindicates what I think Koh had cause to expect, that the issue of the Committee’s authority was aired and addressed, albeit in ways that any one of us might seek to amplify or correct were we to rewrite the transcript as a scholarly dialogue.  The analogy to a witnesses’s trial testimony is no better, but I am blathering on too much now.

    When I said originally that I found this discussion dispiriting, here’s what I meant.  You seem to disagree with Koh about whether the US should ratify CEDAW or, at least, whether the CEDAW Committee is a significant counterwarrant to ratification.  One might debate that and its significance to the nomination; one might even criticize his testimony on its merits, and argue that it was unpersuasive or, I suppose, less complete than it should have been under completely different, lab conditions.  (Take heed, though, that in an ideal world, the executive branch would have participated in the hearing.)  But instead your criticism takes the form of a brief to the effect that Koh’s testimony was not “forthright.”  (By the way, to invoke the august authority of The Princess Bride, I do not think that word means what you think it means; you insinuate that Koh was being evasive, but to be forthright is also to be direct and to the point, which is kinda what you would have Koh’s testimony NOT do.)  Now you analogize this to perjury; assert that there was “confusion” caused by Koh’s “material omission”; and suggest it’s the kind of behavior that merits the label of “shyster.” I think the burden on someone who would convert substantive or ideological opposition into a character assault is extraordinarily high, and I don’t think you come close to meeting it; certainly railing about prepared testimony without bothering to put it in the context of the actual hearing (or, as you might put it, confusing readers of your blog, who will never venture over here, by your “material omission”) isn’t a good start.  I don’t mean to be rude, or even naive, but I would appreciate it if you tried to take this to a higher plane of discussion.

  5. 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 testimony, and I invite all readers to review it.  I stand by my charge that Koh “deliberately chose not to be—let’s put the matter as delicately as possible—forthright with the members of the committee and the public generally,” except that I confess to understating the point. 

  6. 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 based on reading the prepared statements that I have, it hadn’t struck me that your average witness believes it to be incumbent upon them to exhaust their subjects — to treat each submitted statement as they would, say, an OLC memo they were writing on the same subject.  Where you and I really seem to disagree is whether we should view a prepared statement as a stand-alone measure for forthrightness.  From Koh’s position, you would seem to be requiring that he address every argument against the treaty that its *opponents* regard as substantial as a matter of obligatory *disclosure* . . .  despite knowing full well that those opponents were participating in the hearing and speaking on their own behalf.  Sometimes it is hard to distinguish between your criticism and one which treaty proponents might have made while he was writing his testimony (“Take another few pages and go after the stuff about the Committee, Harold!”).  I think there’s a gulf between such tactical advice and a failure to be forthright. 

    2.  I have not re-read the law review article, but I had the impression that it was basically a slightly gussied-up version of the testimony.  Until I re-read it, I am not in a position to evaluate your claims, but I can’t say that anything you’ve said on the merits (e.g., about holidays in Belarus, of which we all have such warm memories) makes me especially concerned.  My point here was simply to reinforce the point that congressional testimony is a completely different kettle of fish.  You seemed to be saying, initially, that he was misleading the Senate, and invoking the law review article to evidence that (quelle horreur!) he was actually aware of what the Committee was up to at the time he was testifying, such that he could not claim ignorance as an excuse.  Anyway, that’s what I took to be your point, but perhaps it was meant to be a full-bore criticism of the article too.

    3.  I did not mean to ignore your question to me about Koh’s oral testimony (or, of course, to misrepresent it).  I’m sorry you are so aggrieved about that; someone in the prior thread found both instances to which I was referring and quoted one of them, so I kind of thought you had your answer, and I knew based on your original post that you were pretty much uninterested in what happened in the hearing anyway. 

    I did not mean to mislead you, and hope you didn’t understand me to be implying that Koh had addressed the particular Committee reports you were concerned about. Rather, Koh endorsed a lengthy rebuttal statement by Senator Biden and indicated his confidence, based on his experience, that with the Committee was nothing to fear: with US participation the Committee would be de-fanged, national interests could be protected in “various ways,” and we were already fully compliant with most of the treaty anyway.   I took “various ways” to be an allusion to his earlier comment in his prepared testimony, and his oral remark following Senator Biden, about attaching understandings (as you pointed out, he doesn’t endorse that approach, but seemed to mean that such a mechanism exists should the Senate think differently).  Koh could have, but did not, address the legal effect of the Committee’s pronouncements; Senator Boxer had made a big deal of that point pretty much right out of the gate, so perhaps he felt it was unnecessary.

    4.  I am fascinated by the suggestion that you may be understating your allegations, but perhaps we can just agree to disagree at this point, since I think any third parties still reading know enough about our positions to make up their own minds.  Please do feel free to email me.

  7. 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 difficult to make sense of.
     
    On the numbered points:
     
    1.  My position is not that Koh should have “address[ed] every argument against the treaty that its opponents regard as substantial.”  Not even remotely.  Here is my position (drawn directly from my blog post about Koh’s testimony):
     
    a.  Koh testified that it’s “flatly untrue” that “CEDAW supports abortion rights,” and he cited in support of this proposition the fact that “several countries in which abortion is illegal—among them Ireland, Rwanda, and Burkina Faso—have ratified CEDAW.”  Yet he didn’t see fit to acknowledge and explain away the CEDAW committee’s statements on abortion, including its specific statements about Ireland—namely, that the committee “is concerned that, with very limited exceptions, abortion remains illegal in Ireland” and that it “urge[d] the Government [of Ireland] to facilitate a national dialogue on women’s reproductive rights, including on the restrictive abortion laws.”
     
    b.  Koh testified that “some have falsely suggested that ratification of CEDAW would require decriminalization of prostitution,” but he didn’t see fit to acknowledge and explain away the fact that the CEDAW committee had expressed its concern that prostitution is illegal in China and recommended decriminalization of prostitution there.
     
    c.  Koh labeled “preposterous” the claims that CEDAW “would somehow require the United States to abolish Mother’s Day,” but he didn’t see fit to acknowledge and explain away the CEDAW committee’s objection to Belarus’s Mothers’ Day “as encouraging women’s traditional roles.”
     
    d.  Now if there were any reason to believe that Koh regarded these CEDAW statements as patently entitled to zero interpretive weight, his position might be easier to defend (though it would still be odd that he wouldn’t make that point).  But as I explain in my blog post, the evidence “seems clearly to foreclose that possibility”:
     
    When Koh in his law-review article tries (unsuccessfully) to explain away the CEDAW committee’s statement on Belarus and Mother’s Day, he doesn’t argue that the CEDAW committee’s interpretations of CEDAW are entitled to no weight.  Further, in the amicus brief that Koh submitted as counsel of record in the Supreme Court in Lawrence v. Texas in January 2003 (a mere seven months after his testimony before the Senate Foreign Relations Committee), Koh emphasized the interpretive authority of the CEDAW committee in support of his argument that “five of the six major U.N. human rights treaties have been interpreted by their respective supervisory organs to cover sexual orientation discrimination.” (Brief at 24-25 (emphasis added).)  He cites two of the CEDAW committee’s “Concluding Observations” in support of that proposition, (Brief at 25 n. 49), and his brief cites five other “Concluding Observations” of other treaty committees.  Further, such interpretations are a critical part of the “transnational legal process” that Koh urges “American lawyers, scholars, and activists” to “make better use of”:  “Those seeking to create and embed certain human rights principles into international and domestic law should trigger transnational interactions, that generate legal interpretations, that can in turn be internalized into the domestic law of even resistant nation states.” 
     
    From the evidence, it seems clear that Koh made a deliberate decision not to discuss the CEDAW committee statements, precisely because he believed that they are entitled to some interpretive weight and wanted to preserve his option of invoking them, as he did in his Lawrence brief.  (And, as I noted in my second comment to Julian’s previous post, the CEDAW committee statements that he cites in his Lawrence amicus brief are no different in kind from the ones that undermine his arguments in his CEDAW testimony.)
     
    3.  The oral testimony of Koh’s that you cite has no bearing on the deficiencies in his written testimony.
     

  8. 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, “Whatever may be said — and, by the way, we can affect significantly what that CEDAW Committee says by participating, and if you are worried, attach understandings until you are more comfortable — we should be focusing on what the treaty requires, and I want to highlight that it doesn’t dictate any of these outcomes.”  That person might be emboldened by knowledge that it is widely understood that what the Committee says is not binding on treaty parties, and might take note of the fact that the Committee always seems to be “expressing concern” and “recommending” things, rather than claiming they are obligatory.  That person might also anticipate, perhaps with exasperation, that the CEDAW Committee’s pronouncements would be given substantial air time at the hearing, so as not to worry that they would somehow be overlooked or that some dimension would be missed.  If interpretive weight existed, such a person might even think, it can easily be directed and counteracted — if only we’d join. 

    I take it you are saying that Koh was not, and *cannot* be, that person — I’m guessing this has a lot to do with your view of his transnationalist impulses.  So to you “it seems clear that Koh made a deliberate decision not to discuss the CEDAW committee statements, precisely because he believed that they are entitled to some interpretive weight and wanted to preserve his option of invoking them, as he did in his Lawrence brief.”  Because I think the positions (whether or not we agree with them) may be easily reconciled without imputing this motive, because I think that motive is  implausible under the circumstances, and because I think such an allegation (esp. if it implies a deliberate decision not only preserve future scholarly latitude, but also to accomplish a material omission with the purpose of misleading the Senate — if that is what you mean) has to meet a very heavy burden, I continue to disagree.

    With comments buried this deep, we are going to strike oil soon.  You may take a last shot if you like, but I get half of any claim.

  9. Shorter Ed Whelan: Disagreeing with me = poor quality of argumentation.

  10. 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.

  11. 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 can be.  But if so, why doesn’t Swaine reconcile them for us?  And if the matter were so easy, doesn’t that undercut Swaine’s previous (and baseless) claim that Koh somehow wouldn’t have had room in his written testimony to make the points?
     
    As for Non liquet’s comment, I have never contended that the CEDAW committee statements were Koh’s “most persuasive, national sovereignty destroying authority” in his amicus brief in Lawrence.
     
    I stand by my judgment that Koh’s written testimony provided the sort of advocacy that helps earn a lawyer a reputation as a shyster, and I refer interested readers to my full post
     

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