NYU Petitioners Do Harold Koh — and Themselves — a Grave Disservice

by Kevin Jon Heller

Newsweek published a long article today about a petition organized by NYU students, alumni, and non-law faculty claiming that it would be “unacceptable” for Harold Koh to teach international human-rights law at the law school. Here is a snippet:

While working for the Obama administration, Koh was the most public legal defender of the president’s drone strike program. Last month, a petition was circulated at NYU Law—one of the top law schools in the country—that called Koh’s teaching of international human rights law for the 2014-1015 academic year “unacceptable.”

“Given Mr. Koh’s role in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes, we find his presence at NYU Law and, in particular, as a professor of International Human Rights Law, to be unacceptable,” the petition reads.

The petition has drawn around 200 signatures, but it has stirred a much bigger controversy on campus than the numbers might suggest.

I do not think scholars should get a free pass for their ideas simply because they were government officials when they embraced them. I continue to believe that it’s a terrible idea for serious scholars to go into government — this kerfuffle being Exhibit A. And I have very serious disagreements with Koh about the legality of the Obama administration’s drone program; indeed, I’ve discussed them with him.

That said, I find the petition appalling. Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor. Does that mean he was always right? Of course not. As I said, I don’t share his view of the drone program. On the contrary, I think the program is abhorrent and quite often illegal. (And have said as much in my scholarship.)  But I would bet my last dollar that Koh never went against his beliefs while working at State — and that he did everything he could, within the confines of his position, to make the drone program comply with international law as he understood it.

Those of us on the left — and readers know just how far left I am — need to stop viewing US administrations as monoliths. Not all government officials are bad. Even terrible administrations have good people in them who work behind the scenes to minimise their terribleness. John Bellinger III falls into that category in the Bush administration; commenters on the blog have done him a disservice by lumping him together with people like John Yoo. And the NYU students, alumni, and faculty who have signed this petition have done Harold Koh an even worse disservice by accusing him — publicly — of being unfit to teach international human-rights law. On the contrary, NYU would be lucky to have him.

http://opiniojuris.org/2015/04/07/nyu-law-students-do-themselves-and-koh-a-disservice/

21 Responses

  1. Thanks for the post . I definitely support the idea of scholars (especially in law) going to become officials in governments. Only by practicing , you do understand the huge gap between theory and reality . that is how law and theories or practices , are refined , and refined , to the best practical and fair results . To yell and preach from the height of academy towers (no offense, of course) won’t promote any better outcomes, but: leaving the arena, and totally so , to instinctive behaviors . Thanks

  2. “Koh is one of the great international human-rights scholars of his generation — and he has personally taught or mentored most of the great international human-rights scholars of the current one. He is brilliant, compassionate, kind, and profoundly ethical. No one who knows him even a little (and although I know him, I can’t say I know him well) could possibly believe that he did not bring all of those qualities to his role as the State Department’s legal advisor.”

    I don’t understand this argument. If a person spent almost all of their life being a great person but committed one horrific crime, wouldn’t they still be punished?

    The point of this petition is to punish Koh for his public actions supporting the drone strike program, not for his character or academic work. The clear long-term purpose is to develop a deterrent to stop future elite lawyers from becoming key members in the next horrific government program. How is this petition substantially different than the petitions to block the hiring of Yoo and Bybee (which I’m assuming you’re ok with since you don’t seem to be against the idea of the petition, just the specific attack on Koh)?

  3. This is another example of leftist attempts to purge academia of anyone with whom they disagree. Maybe they should erase his name from textbooks just as Trotsky’s name was erase from the Great Soviet Encyclopedia.

  4. My difficulty with the petition lies mainly in the the strong distinction being made between “what humanitarian/HR lawyers do” on one hand and violence on the other. Can we really make such a strong distinction between limiting and deploying violence? Not all of us are in a position of responsibility (or do I mean effectiveness?) but as soon as we start making arguments about questions of proportionality, necessity, and engaging in shadow targeting analysis, we are all participating in an activity that justifies as much as it limits killing. (And I am not even thinking of the debates on humanitarian intervention or lawfare). I think it is an important set of questions we have to ask ourselves, and it is right that others should criticize our profession on this very basis. I only wonder if the petitioners have thought about the work that is being done by the wider community of international lawyers (at NYU and elsewhere) with this consideration in view. With a minimum of consistency, we should expect a lot of empty classrooms, starting with courses that have the words “human,” “rights,” or “humanitarian” anywhere in the the title.

  5. I saw Mr. Koh at a conference he gave last summer and he summed up his position pretty well: when you get hired as a lawyer, you try to get your client away with as much a possible, whether you agree with her actions or not. He was a fine speaker, but he seemed very detached from the sufferings he may be part of.

    I understand the difficulty of keeping your morality untouched as soon as you touch the real field, even more so the higher responsabilities you get. But still, I get the students’ concerns. It’d be interesting to see an honest conversation of all parties.

  6. What I find most interesting is the fact that the petition was signed by non-law faculty and students. Harold Koh made legal arguments to support the drone strike plan and that is where the discussion should stay. This is a legitimate legal discussion and should remain in the realm of international law rather than online petitions.

  7. It looks shocking and appalling to me that someone, regardless of whether one has Koh’s experience, could be judged on their academic credentials because of previous non-academic work. It is all very worrying, especially with all the nonsense going on about the need not to shock or distress higher education students. It’s called academia, folks: if you don’t want to be challenged, stay home. I agree 100% with Kevin here.

  8. I thank Gabriel Armas-Cardona and Pablo for your thoughtful comments. And I urge you all to examine more critically Koh’s writings and lecturers.

    I personally need help with the following concerns regarding Koh in government (whether during the Reagan, Clinton or Obama administrations):

    1. Whether Koh knew and supported the CIA arranged fake vaccination drive to capture Osama bin Laden.
    2. Whether Koh knew and supported the US state department blocking of minimum wage increase in Haiti. On this matter, see http://www.thenation.com/article/161057/wikileaks-haiti-let-them-live-3-day
    3. The extent to which Koh supported/protected Israel during Israel’s raid on the Gaza Freedom Flotilla in May of 2010.
    4. Whether Koh has made any comment on US campaign against the Extradition of General Pinochet to Spain in 1999.
    5. Whether Koh supported in any capacity the US invasion of Grenada under the Reagan administration.

    Thank you.

  9. So all commenters above would have no objections to having Henry Kissinger teaching human rights? After all, he has written a large number of books, and is often invited to speak as a distinguished academic.

    I consider educated and wealthy individuals, living far from the battlefield, providing the legal underpinnings for crimes against civilian, to have a far greater degree of individual criminal responsibility for crimes committed than any 18 year old firing a gun at a civilian on the battlefield.

  10. Charlesloewe ,

    Thanks for your comment . with all due respect , your observation , derives from a very synthetic understanding of reality .

    The issue is not who is the best person to lecture and teach on human right , but rather :

    Who is the best person , for describing and solving in practical terms, issues have to do with :

    How human rights , are guarded or kept from substantial abuses , within a very : hostile , stressing , cruel , chaotic situations .
    Let me demonstrate it to you , from the very battlefield :

    In the last operation in Gaza , unprecedented means , where implied by the Israeli army , in order to reduce ( laughable as it may sound ) civilian casualties , imagine to yourself , as a routine :

    An infantry unit is moving on the ground , a drone is constantly keeping in touch with the unit. An electronic headquarter on the ground , may warn the unit and the air force about terrorist groups, mixed with civilians ahead .A chopper or F16 (I am not kidding around) is to be summoned , and in a drill nicknamed: ” knocking on the roof ” civilians may get: an SMS, or phone call, or some shootings on the roof , to leave at once the house, so the unit mentioned or the air force, may eliminate terrorists , without harming civilians . trust me , I am not kidding around here !!

    So , If any way , we can’t control the stupidity of humanity or politicians deciding to fight endlessly , it’s better to do something , and effective think , to reduce causalities , and enhancing norms and standards concerning collateral damage , all by supervision and inspection of experts in international law , over , shooting spree . Thanks

  11. A great human rights scholar should not declare that human rights are displaced by the laws of war during armed conflict, which is false. But that hardly matters re: the petition — which apparently does not take into account that Gen. Comment No. 31 of the HR Comm. of the ICCPR has affirmed that although the ICCPR applies globally, persons protected outside of a state’s terr. or occupied terr. are merely those who are under the actual “power or effective control” of the state. What type of h.r. law are they teaching at NYU? Indeed, what type of laws of war?

  12. No one should get a pass for what they do in government service – it is not covered by academic freedom. They live with the consequences of the advice or operational role they took.

  13. Ben is correct, but the most egregious conduct which, beyond a reasonable doubt, placed professors Yoo at UC Berkeley) and Goldsmith (now at Harvard) in the category of reasonably accused of complicity re: their memos was during the Bush/Cheney era.

  14. p.s. why is Kevin so enamored with Bellinger? The story is not out yet. Yet, unlike Alberto Mora, he did not resign and stayed with Condi for several years while Condi ran the NSA program and meetings in the White House Situation Room – Condi admitting that she passed along the Bush-Cheney authorization for torture but did not authorize it herself (an admission of complicity). Did Bellinger oppose secret detention (which is a war crime as well as a crime against humanity of forced disappearance)? Did Bellinger affirm that human rights guaranteed to all persons universally under the UN Charter prohibit torture as well as cruel treatment and inhuman treatment? Did Bellinger affirm that human rights protected under the ICCPR applied to those detained by the US? Did Bellinger affirm that customary human rights provide the same protections? Others have addressed his omissions in their law review articles – check on Westlaw.

  15. I agree with KJH that the NYU petition is disappointing, especially in light of Harold Koh’s record in government, an extensive evaluation of which is available here:
    http://justsecurity.org/21912/harold-koh-nyu-asil-2010-speech-advancing-human-rights/

    On the issue of drones in particular, Harold was not just instrumental in advocating for the drones programme to be compliant with international law as he saw it, but also played a key role in ensuring that the legal basis of the programme was publicly articulated, so that it could be critically examined and challenged, where the previous administration would have done its best to keep the legal position secret. I think that the long term impact of this move to be transparent is under-appreciated, and will only be realised when future administrations revise the legal position, as a result of both the decision to publish and discussions within the international law community.

    I had the privilege of hearing Harold’s first public speech after his departure from the State Department, entitled “How to End the Forever War” (available here: http://www.law.yale.edu/documents/pdf/Faculty/KohOxfordSpeech.pdf) in person, and the speech is striking in its criticism of the Obama administration’s failure to be transparent on drones in its legal standards and decision-making process (p. 14) after the 2010 speech, and its calls for more transparency and consultation in setting the legal standards (p 15). Harold has since renewed these calls publicly, and continues to do so, and I find it difficult to see what more anyone could have done, short of resigning, given a President who was determined to use drones, apart from Harold’s internal advocacy to make the programme as compliant with international law as possible, and his external advocacy since leaving the Obama administration.

    As for the question of whether Koh should have resigned, I think the petitioners should consider whether the drone programme would have been more abhorrent in its impact and less compliant with international law without Koh’s input, and more generally whether the US foreign policy would have been more compliant with international law and humn rights law. The short answer is, no.

  16. I have forgotten to put some links , for what has been described by me , or at least part of it ( knocking on roofs and so forth….) so here two links :

    http://www.haaretz.com/news/idf-phones-gaza-residents-to-warn-them-of-imminent-strikes-1.267350

    http://en.wikipedia.org/wiki/Roof_knocking

    Thanks

  17. “Public service” by creating debate over the drone program? I wonder how the families of the innocents who were murdered by that program would judge that “public service?”

    The truth is that Koh furthered his own career and lent legitimacy to the Obama Administration by his participation.

    Unlike an attorney asked for advice after the fact, Koh participated on an ongoing criminal enterprise, even after he knew it was engaging in criminal misconduct. There’s a name for that and it’s not counsel of record.

    Supporters of Koh would do well to remember a different choice made by Archibald Cox, Elliot Richardson and William Ruckelshaus. Moral people can make a difference in government, but only when they are willing to act on their morals.

    Patrick

  18. you can read also here in ” just security ” :

    http://justsecurity.org/22233/harold-koh-battle-dueling-petitions/

    Thanks

Trackbacks and Pingbacks

  1. […] gives reason for a fuller accounting. Let’s set aside some of the language in that particular initiative (a quote by Hannah Arendt that associates Koh with the Nazi functionaries and a suggestion that he […]

  2. […] Meanwhile, at Opinio Juris, Kevin Jon Heller argues that the NYU petitioners are doing themselves “a grave disservice.” […]

  3. […] Meanwhile, at Opinio Juris, Kevin Jon Heller argues that the NYU petitioners are doing themselves “a grave disservice.” […]