Harold Koh and the Filing of Statements of Interest

Harold Koh and the Filing of Statements of Interest

One of the remarkable differences between the Obama Administration and the Bush Administration in terms of international litigation is the utter silence of this State Department in filing amicus briefs and/or statements of interest. I know that Harold Koh has only been Legal Adviser since June and Sarah Cleveland has only been Counselor on International Law since September, but I frankly am quite surprised by the passivity of this State Department on matters of international litigation. John Bellinger filed at least two dozen statements of interest and/or amicus briefs in Bush’s second term. Beyond responding to the Supreme Court’s invitation to file a government brief in Abbott v. Abbott, Koh has filed only one amicus brief, opposing a pro se prisoner’s claim before the Third Circuit in McPherson v. United States that the plaintiff had an individual right to challenge a violation of the VCCR.

What gives?

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National Security Law, North America
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Edward Swaine
Edward Swaine

You note when everyone took the helm (and, of course, summer isn’t the high season), which strikes me as a sufficient explanation. 

More generally, though, I’d guess that discretionary filings in a new administration’s first year — at least when a new party is in power — are routinely fewer than those later in a first term, and that they increase steadily through the first and second terms (albeit at a lower rate of increase eventually).  There’s simply too many positions to develop, and too much else to do, and would-be litigating positions require the coordination of two or more (equally new) departments.  Of course, once a position is established, it becomes much easier to file variants on it. 

If this is true — I have no data to back it up, and might be dead wrong — then the two situations really aren’t comparable.

Vlad Perju


I think you are basically right that the jury is still out and we will have to wait and see.  But that response is frustrating given that some incredibly important cases are now working their way through the courts on issues such as aiding and abetting corporate liability, foreign sovereignty immunity, and executive branch policy as federal preemption.  On some of these issues, I’m not sure there are second chances to get up to speed and respond when the State Department finally decides it is fully staffed and ready to state its position.

Roger Alford  

Edward Swaine
Edward Swaine

Roger, thanks for the reply.  The cases you mention all require coordination with Justice Department and, possibly, third agencies or offices, so “when the State Department [which is not limited to L] finally decides it is fully staffed and ready to state its position” may or may not be the limiting factor.

When I worked at Justice, all delays were due to client agencies; later that was never the case.  I have yet to determine what accounted for the sea change, but the constant is that it was never my fault, and happily that continues to be the case.