Harold Koh’s Keynote Speech at University of Virginia

by Roger Alford

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.

http://opiniojuris.org/2012/02/11/harold-kohs-keynote-speech-at-university-of-virginia/

13 Responses

  1. ==When he speaks as a Legal Adviser he does so as an advocate.==

    There is a big difference between an advocate and Koh. Advocates lose cases 50% of the time. Koh does not lose any case. Whatever he says is legal. If U.S. decides tomorrow to torture me, kill my family and rob my oil, and let’s Koh fantasize some legal argument, that argument always wins. I cannot sue U.S. in any international court and prove that Koh’s argument is flawed. Therefore, Koh’s argument has the same value as the legal arguments of dictators. Whatever Gaddafi or Mubarak said, it was the ultimate legal argument.

  2. Response…  “Whatever he says is legal.” That is a bit much.
     
    The book you cited is listed as being published in 1990 on Amazon. The look inside the book backs that up.  Is there an earlier edition?

  3. “If there is anything inconsistent between what I said in a footnote when I was 29 and what I said now”

    Easy way out. The problem is that many of his inconsistent views were expressed just a few years ago during the Bush administration (and was stuff NOT left for a footnote). Are we to believe that those were also the product of youthful naïveté? Please!

    “[A]n international lawyer recognize the different roles that he plays and speak accordingly… anyone who has ever worked in a law firm, clerked for a judge, or represented a client should understand what Koh is saying.”

    The problem is that Koh is no first year associate. The point of being a prominent jurist is that you have a choice, you don’t have to say what somebody wants you to say on his behalf. You have choices, at least if you also have principles. So you don’t have to validate bombing campaigns without congressional authorization or the execution of American citizens without due process. Koh can simply say NO when something is wrong and illegal and doesn’t have to legitimize those measures by signing his name into a piece of paper that will be cited to justify the continuation of the mutilation of our constitutional system for years to come.

  4. In his “1998 Frankel Lecture: Bringing International Human Rights Home” Koh urged private individuals “to promote obedience to international law” and told us that “we have a duty not simply to observe transnational legal process, but to try to influence it.” Now he tries to prevent individuals from influencing International Law. Koh contributed greatly to a book named “International human rights litigation in U.S. courts.” He also participated as lawyer in Alien Tort Statute litigation. Now he does whatever he can to avert individuals sueing the U.S. government using ATS. Nobody can tell me that since then something radically changed in the world, that gives the U.S. government the freedom to kill, torture, imprison without fair trial and that Koh has discovered the ultimate legal argument to defend such crimes. It’s just that a good guy turned criminal.

  5. Roger,

    Thanks for posting this. I think the identity of the client in Koh’s speech is an important point.  You first indicated that he said that his client is “the government” and later say that, “[a]s an advocate, his goal is to ensure that the President almost always wins.”  These two statements are not necessarily consistent.  

    I, for one, tend to believe that “the government” (writ large) is an executive branch attorney’s client.  If so, than that attorney must take into account the interests of preserving the constitutional structure/separation of powers (one might even say “rule of law”) when giving advice.  She should not advocate for her branch of government, but rather should give objective advice regarding how that branch exercises its constitutional powers without infringing upon powers reserved to other branches, or by infringing no more than is permissible under the circumstances.  (Enter the uncertainty of a our Constitution, the broad outlines of which were understood to require time to liquidate their meaning.)

    Moreover, objective advice is not necessarily the same as advocacy.  What I advise my client in private is not necessarily the same as what I might ethically argue on my client’s behalf in court.  So I am curious whether Koh’s public statements might be in part explained by the idea that when speaking publicly about the government’s legal views on any given matter, he believes that he is necessarily advocating in the court of public opinion, be it national, international, or, most often, both.  But that still doesn’t necessarily resolve whether he is advocating for the President or executive branch alone, or for “the government” (writ large).

    A corporate attorney’s advice should not change depending upon whether she is advising the President/CEO or board of directors.  The corporation is the client, acting through these various agents.  The interests of the corporation (and indirectly the shareholders of a public corporation), not the agents, is what matters.  The analogy of this situation to that of a U.S. government attorney appears pretty obvious to me.  However, when speaking on behalf of the corporation, an attorney must keep in mind the greater interests of the corporation regardless of her personal or professional views, so long as the views espoused are at least arguable.

    Following this analogy, another possibility is that Koh has recognized that the flaws or substantial play in the joints in our system of government — particularly regarding international affairs and national security — require more latitude in the executive to preserve the greater interests of “the government” (writ large). Thus, his advice might be merging to some unclear extent with the views that he espouses/”advocates.” 

    I would like to think that a brilliant and thoughtful man like Koh has thought all of this through a bit and will have more to offer us about it when he leaves government.  I eagerly await that day.

  6. At the end of the second-to-last paragraph above, I should also have added that:

    “Alternatively, in some cases Koh may hold to some of his earlier opiinions, but while State Department Legal Advisor feels must espouse the consensus view of senior government attorneys in service to his client and its policies.”

  7. Response…
    A major shift is from his earlier view that only Congress can authorize war or armed conflict.  I have an article coming out later at Emory on Libya and the War Powers Resolution, etc., but I agree that the President does not need congressional authorization to use military force pursuant to Arts. 42, 51, or 52 of the U.N. Charter, since it is treaty law that the President is bound by the Const. to faithfully execute, etc., etc.
    The war powers debate will be with us for a long time — perhaps also after a U.N. Uniting for Peace resolution next week concerning Syria? and Presidential use of force?

  8. Mihai,

    You lose a lot of force in your argument by speaking in hyperbole. I generally think that comments should seek to persuade, not vent.

    Joe,

    You’re right.  I fixed the publication date. Thanks.

    Albeniz,

    I think that Koh would resign and return to teaching at Yale if he felt certain lines were crossed.  Thus far he has chosen to stay.  My preference is to suspend judgment until he has the chance to defend his positions after he is no longer a government lawyer.  Anything he says now he will be speaking as an advocate.

    John,

    I agree with you.  Koh did not make the distinction you are making but your point is well taken.  Government lawyers often must make difficult choices based on who they perceive the client to be.  In Koh’s discussion, he seemed to be referring to the Executive Branch as the client, and that he was answerable to Clinton and Obama.  

    Jordan,

    Look forward to reading it.

    Roger Alford

  9. “I think that Koh would resign and return to teaching at Yale if he felt certain lines were crossed.”
     
    I think if the tsar only knew how the local officials oppress us, he would be horrified and would put everything right.  If only we could get to the tsar and let him know if our plight, everything would be fixed.

  10. @Roger
    Your reaction is an ad hominem.
    It is a fact that there is no international court where one can sue U.S., especially not if one is an individual. Take for instance the case of Khalid El-Masri, a case of mistaken identity. He was abducted, flown to Afghanistan, raped and tortured for months, then released when the blunder was discovered. He sued all the way up to the U.S. Supreme Court, but the courts dismissed his case for various reasons, unrelated to the substantive questions. That’s nothing new, since the U.S. legal system is made to insulate the government: “When ATS suits are prosecuted against the United States and U.S. officials they typically fail. To date plaintiffs have been unable to overcome the government’s sovereign immunity, political question, and state secrets defenses.”, J. Davis. Justice across borders: the struggle for human rights in U.S. courts. Cambridge University Press, 2008. p. 90.

    The fact that there is no international court where El-Masri can sue U.S. is not the result of a natural law, nor is it accidental. U.S. rejected all initiatives to create international courts for human rights, or give individuals legal standing in existing courts. Also the fact that ICJ does not have compulsory jurisdiction is again the result of the acts of powerful states, including U.S., in order to commit their crimes with impunity.

    Thus, with or without hyperbole, whatever Koh says, is has the same value as what dictators say. He and his followers take it serious, but those who suffer the consequences, know that it’s just theater.

     

  11. @Mr. Alford — If he still doesn’t believe that important lines have been cross, I doubt he ever will.

  12. To all,

    I believe a clear distinction between academic and professional opinion should be maintained. Mr. Koh may be an academic or the State Department’s Legal Adviser, but not both at the same time. So, we can be sure that he is not speaking with two voices at the same time – as the Legal Adviser, he only speaks of the Administration policies in the language of international law – I doubt that anyone could counter this fact, he surely has limited discretion to decide what he will say publicly. 

    People have a right to question his professional integrity when he appears to be inconsistent about the same thing. That happens when theory and reality don’t fit. In the academic world, law theories and principles may explain things and persuade rational minds. But in a government, international law is just one among various factors to consider before taking an action. When the decision-maker (like Head of State) arrives at a conclusion, his legal adviser should presume that his advice was considered and weighed against other factors. If that action is badly at odd with his advice, his duty is to try his best to find a possible justification for the action in the language of international law. Luckily, the language of international law is not that strict and room for another interpretation still exits for most of the times. Shortly, it’s surely not his personal view.

    Then the question is whether he should resign every time his administration fails to embrace his original view. 

    Here is actually the question of tolerance for difference. Mr. Koh could have for himself a limit where he is no longer able to speak for the government. And the fact proves that he has not reached that limit.

  13. It’s quite simple. At one time Koh was not working for a Unitary Executive. Now he works for a Unitary Executive.
    His views have changed. Go figure.
    Moral: Never believe anyone currently working for a Unitary Executive.

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