400+ Academics Sign an Open Letter in Support of Harold Koh

by Kevin Jon Heller

I’m one of them. Here is the text of the letter:

To Whom It May Concern,

A recent petition at NYU urges people to express “no confidence” in the Law School’s invitation to Harold Hongju Koh to teach international human rights law this semester. We understand that this petition is motivated by Professor Koh’s recent service as Legal Adviser to the U.S. Department of State in the Obama Administration. We agree that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program. We also agree that U.S. actions must conform to a demanding application of constitutional law and international law.

Nevertheless, we believe the petition is deeply misguided. Professor Koh has been a leading scholar of, and advocate for, human rights for decades. While some may disagree with him on particular issues of law or policy, he is widely known for his unquestionable personal commitment to human rights and his eminent professional qualifications to teach and write on the subject. Any number of reports confirm that Professor Koh was a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.

While we strongly support the free exchange of ideas that is fundamental to civil society in general, and the academy in particular, we think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty. The world needs more human rights professionals who are willing to commit themselves to government service on behalf of their nation.

You can find a list of the signatories, which span the political spectrum, here.

http://opiniojuris.org/2015/04/16/400-academics-sign-an-open-letter-in-support-of-harold-koh/

14 Responses

  1. one problem (especially since there is no lex specialis override of human rights jus cogens, customary human rights guaranteed in all contexts John Bellinger, The Convention Against Torture: Extraterritorial Application and Application to Military Operations, Lawfare blog (Oct. 26, 2014) (claiming that when he was the State Department Legal Adviser in 2006 the U.S. position was never that the Convention Against Torture “did not apply at all during armed conflicts…, but rather that military operations … were governed by the specific rules in the laws of war, not human rights law,” and that an internal memo by a subsequent Legal Adviser, Harold Hongju Koh, had claimed that “‘U.S. military operations in the conduct of … armed conflict … are properly governed by relevant standards of international humanitarian law, not international human rights law’”), available at http://www.lawfareblog.com/2014/10/the-convention-against-torture-extraterritorial-application-and-application-to-military-operations/ through the U.N. Charter, etc. — see

  2. not governed by human rights law?

  3. Right on Jordan!

    I have read or been told over the past 15 years of too many persons having been defenders of human rights while in government only to find out afterward that reality was much different.

    So I have a healthy skepticism about those kinds of statements.

    All we can do is see the things they did in public or are revealed in the memoirs that come out later.

    Best,
    Ben

  4. If the sentence below was not in the letter and you had no basis for assessing Koh’s internal advocacy while in his government position would you have signed the letter?

    “Any number of reports confirm that Professor Koh was a leading advocate for preservation of the rule of law, human rights and transparency within the Obama Administration, including on the drones issue.”

  5. Simply turn this statement around and answer it:
    “we think it is patently wrong and unfair to suggest that Professor Koh acted unethically by his recent government service, or that his service now disqualifies him to teach human rights law on a leading law faculty.”

    How were his actions ethical? How do his actions qualify him.

    One Koh is in an argument with another Koh on these issues and though both can be in error, both cannot be correct.

    He changed his tune and must bear the consequences. No excuses, no mealy-mouthed defenses. He became, some could argue, a lawyer for the mob and merits being viewed that way. He didn’t have to take the job and he didn’t have to make the arguments he could have resigned. Archibald Cox might’ve, oh, right he did. Bork didn’t.

  6. I’m still wondering what the difference is between Harold Koh and John Yoo. Could someone enlighten me?

  7. Jordan – would you kindly recast your initial posting. It comprises one long and yet incomplete sentence which I just cannot follow, at least for the first half. You may be making a good point, but, if so, it is lost in the current version.

  8. Gautam Bhatia – As I understand it, Koh has been part of the effort to end torture as practiced under the Bush Administration. Koh has not minimized the definition of torture to only include extreme cases, nearing organ failure or death. (I admit to being a little confused as to any implicit assertion that organ failure or death is always painful or, more generally, an appropriate metric.) Apologies if I’m oversimplifying – I’m taking your query at face value and trying to provide a simple answer.

  9. Robert: can’t correct the post, but the last line should have been in the second line before the word “John” I inserted the Bellinger statement and supposed quote from an internal memo by Harold Koh at the wrong spot (sorry).

  10. Mark: “understandable concerns” is a bit much, but I might otherwise have signed, but was not asked.
    Gautam: there is a world of difference. John Yoo drafted the two Bybee torture memos and failed to turn on his computer to discover that there were recognized criteria re: what is “torture,” what is “cruel,” and what is “inhuman” treatment; that there were already 29 U.S. cases, 3 h.r. ct. cases, and 7 US Dep’t of state H.R. Country Reports (also DURING the Bush/Cheney regime) that had recognized that waterboarding is “torture”; cases, etc. re: the cold-cell is “torture”; cases re: death threats; cases re: snarling dogs to induce terror, etc.
    John Yoo also participated in some of the meetings conducted by Condi Rice in the White House Situation Room on the secret detention and manifestly unlawful treatment of human beings (at times, with Cheney, Cheney’s top lawyer Addington, etc.). See the admissions in Yoo’s book, War By Other Means.

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

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

    Thanks

  12. This letter, as well as your other blog post about this issue, are laughable Kevin. They are essentially nothing more than being the academic equivalent of the “I’m not a racist, but….” argument.

    This letter pays lip service to free speech, yet characterizes the actions of the students in even exercising these rights as “deeply misguided”. Not only that, you don’t claim that the IDEAS in the letter are “patently wrong and unfair”; instead, what you say is “patently wrong and unfair” is SUGGESTING Harold Koh acted unethically.

    In your other post, you start by saying that no one should have a free pass, but then you go on to call the petition “appalling”, subjectively throwing on an attack as if it’s an objective fact. You then close with a “But he was always such a nice guy” argument.

    With doublespeak such as this, it’s no wonder you support Harold Koh. Your blog posts are the very manifestation of the problem with many international human right scholars – you extoll high-minded virtues while taking a careerist and opportunity approach when it suits you.

    Rather than engage any of the substantive positions, and have the legitimate discussion about the drone program, you’ve instead opted to attack the students.

    And while we’re on that, don’t you think it’s extremely inappropriate for what are essentially Harold’s friends to use their academic and public positions to drown out the opinions of students who are funding the school and who are actually impacted by what happens in THEIR (emphasis) academic institution. You as an academic asserting that students have no place in demanding standards from their professor is elitism and insularity at it’s worst.

    As a final point, just to update you on the state of the law, since you seem very unfamiliar, Tinker v. Des Moines Independent Community School District (1969) extended free speech rights to public schools.

    What happened to the Marketplace of Ideas? As Nael Boortz put it, “Free speech is meant to protect unpopular speech. Popular speech, by definition, needs no protection.”

  13. Mark,

    The only thing laughable is your caricature of my post. Good luck finding in it even a suggestion that students have no right to their opinion about Koh. Or that I described their decision to criticise Koh as patently wrong or unfair — as opposed to the substance of their criticism.

    If students are “drowned out” by contrary opinion — itself, of course, free speech — they have no one but themselves to blame. Last time I checked, the marketplace of ideas didn’t require affirmative action for tender students who simply can’t cope with criticism of their beliefs.

    It’s remarkable that students who accuse a scholar of being a war criminal have the temerity to complain about being “drowned out” when individuals who respect the scholar, both left and right, respond to their criticism.

  14. Mark N, thanks for your strong message. When it comes to defending Harold Koh, hitmen like Kevin, are agents in the market of favors (rather than ideas). You will be amazed by how often Koh patronizes his supporters whether by helping them or their family members to climb (Koh is known for “facilitating” sons and daughters of friends to get into Yale or Harvard like the Zionist E. Rostow helped for him).

    I invite readers to visit the NYU Law students’ website: https://rethinkkoh.wordpress.com/

    Students also organized a roundtable discussion (in which Harold Koh tried to disrupt by sending a former student to read a self-congratulatory statement): https://rethinkkoh.wordpress.com/events/ Videos of the event are available.

    Students are also researching Harold Koh’s record and their new findings are available at: https://rethinkkoh.wordpress.com/kohs-n-hr-c-v/

    I also urge all of you to pay closer attention to the political work as well as scholarship of warmonger liberals like Koh. And lastly I thank the NYU Law students for unmasking the hierarchical and authoritarian (and idolatrous) mind of so many legal scholars–particularly those parading as human rights advocates.

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