Harold Koh’s Keynote Speech at University of Virginia

Harold Koh’s keynote address today at the University of Virginia conference did a nice job surveying the legal landscape from the Legal Adviser’s perspective. He divided the conflicts into four categories: non-conflicts, soft conflicts, hard conflicts, and hardest conflicts. He then outlined specific examples in his daily docket that fall into each category. Details on the speech will be published in a forthcoming VJIL symposium issue.

Perhaps the most interesting aspect of his discussion was his spirited defense against accusations of hypocrisy. To the question “Why do you say things you don’t really believe?” he offered several replies.

First, he does no such thing. As he has said elsewhere, “I never say anything I don’t believe…. [I]f you hear me say something you can be absolutely sure that I believe it.”

Second, take what he says in context. He is not speaking as an academic. When he speaks as a Legal Adviser he does so as an advocate. The United States government is the client and he is speaking on behalf of that client. Just as a criminal lawyer will often change roles and serve as a prosecutor, defense counsel, judge, or academic, so too must an international lawyer recognize the different roles that he plays and speak accordingly. Moreover, a U.S. government lawyer must speak with due consideration of what has been said in the past and with due regard for the legal opinions of other lawyers in other U.S. agencies.

Third, sometimes his views have changed. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now, then believe me now.” The specific example he gave was about congressional legislation. He said that in the past he often wrote with the assumption that Congress could pass statutes. But having served in Washington long enough he has come to accept that often legislation is simply not an option.

He did not contextualize that comment, so for now one can only speculate as to what he meant. My best guess—and it is only a guess—would be that many of his views about congressional acquiescence to the executive branch articulated in his well-known book The National Security Constitution (published in 1990 when he was 36) are no longer his current views. I say that because the sharpest divergence between Koh the academic and Koh the Legal Adviser comes in the Libya context with respect to the definition of “hostilities” in the War Powers Resolution.

You can judge for yourself whether those replies are persuasive. I personally am sympathetic to all three. I have no way to judge the first, but I have no reason to doubt it either.

As for the second, anyone who has ever worked in a law firm, clerked for a judge, or represented a client should understand what Koh is saying. As a lawyer one makes credible arguments that further the interests of the client, but does not stray from one’s own sense of propriety. The voice of an academic, by contrast, is completely different. For an academic who has never tried to speak on behalf of a client—who has never sought to further a client’s interests within the bounds of acceptable argument—the distinction between advocate and academic may be an alien concept. As an academic he can bemoan the fact that the President almost always wins. As an advocate, his goal is to ensure that the President almost always wins.

As for the third, it is quite plausible that Koh’s views on certain matters may have changed over the course of thirty years. Indeed, one would hope that extensive time in senior government positions would temper one’s academic convictions. Some ideas are abandoned with age and exploration. For any serious academic, intellectual honesty should allow for the possibility of both consistency and correction. On this score, I think that we should suspend judgment until Koh returns to academic life full-time and he can either reconcile his past positions with his currents ones, or failing that, he can fully articulate why and how his views on certain critical questions may have changed in the crucible of public service.

UPDATE: Ken Anderson and Paul Rosenzweig have further thoughts on Koh’s speech here and here. I agree completely with what both say about Koh’s fiduciary duty and duty of loyalty. Ben Wittes agrees as well, but notes that Koh did not apply the same standard to lawyers in the Bush Administration.