Students, Junior Faculty, and Human Rights Scholars are Delicate Flowers

At least according to Fionnuala Ní Aolain, criticising the counter-petition that I and hundreds of others signed in defense of Harold Koh. Her entire Just Security post is deeply problematic; let’s go through it systematically.

When asked to sign, I articulated a deep discomfort with the petition and the precedent it sets. I strongly believe that any academic should be able (as should any student) to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat. The capacity to question and unreservedly critique is particularly important when the decisions made were controversial.

Actually, she doesn’t believe any academic should be able “to openly and fully raise any issues about the decision(s) a person made while wearing a government lawyer’s hat.” If she did, that belief would extend to academics who believe — rightly or wrongly — that the petition calling for NYU to rescind its offer to Koh to teach international human-rights law fundamentally misstates Koh’s role in the drone program. Why are the academics who signed the counter-petition not entitled to the same freedom as those who signed the original one?

I also expressed my discomfort as a non-American international lawyer, echoing the views of many others within and outside the United States, that one can reasonably take the position that the US government and its targeted killing programs breached international and human rights law standards.

As does the counter-petition, which specifically acknowledges “that individuals can have significant and understandable concerns about the use of lethal force by the United States, including the U.S. drones program,” and that “U.S. actions must conform to a demanding application of constitutional law and international law.”

The bottom line is that I am not fully in a position to judge, but neither really are those students who chose to express their views as they did, nor are the academics who were asked and chose to sign the petition. Petitions that purport to know what is unknowable and not in the public domain are neither good individual defenses, nor are they robust defenses that advance the protection of human rights in the United States or elsewhere.

True, we do not know exactly what Koh did. But that did not stop the signatories of the original petition from claiming that Koh “directly facilitated the extrajudicial, unconstitutional killing of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011” and generally played a significant role “in crafting and defending what objectively amounts to an illegal and inhumane program of extrajudicial assassinations and potential war crimes.” Yet Ní Aolain says not a word about the propriety of the signatories accusing Koh of being a murderer (and war criminal); her criticism is directed solely at the scholars who had the temerity to disagree with that accusation. And she simply ignores Ryan Goodman’s post on the same blog, which makes clear that what is publicly known about Koh favours the counter-petition, not the original one.

Next, she writes:

I believe that the letter sends a real chill to an important open debate. It may leave students and professors who might want to express their critical views less able to do so, for fear of this kind of organized and in its way very powerful defense shutting down legitimate conversation that benefits us all. I have been deeply and profoundly influenced by Harold’s writings and his work in the world long before I came to work in an American law school. However, if this kind of organized response is activated for asking open if uncomfortable questions, it may stop many from asking those questions and engaging in the kind of debates that advance a democratic and human rights-compliant society. In a fundamental way, and my articulation may not be popular, it may well mean that younger scholars, those seeking advancement within the legal academy in the United States, and those who might wish to serve in the US government in the future may feel unable to articulate their discomfort precisely because so much of their future career and political advancement is bounded by this jurisdiction.

This is problematic on a number of levels. To begin with, it suggests that the signatories to the original petition are such tender, delicate flowers that they will stop “engaging in the kind of debates that advance a democratic and human rights-compliant society” — such as publicly accusing Koh of being a murderer, despite his actions in government supposedly being “unknowable” — the minute that they learn many others disagree with them. Maybe the signatories to the petition are such tender, delicate flowers that they cannot bear to have their criticism criticised. But here’s a thought: if you are only willing to publicly accuse someone of being a murderer as long as no one disagrees with you, perhaps you should not publicly accuse someone of being a murderer.

But that isn’t the worst claim in the above paragraph. I find particularly troubling Ní Aolain’s suggestion that an “organized” response to the original petition (ie, two professors wrote a response and asked others who agreed with them to sign it) might make “younger scholars” “feel unable to articulate their discomfort” (ie, publicly accuse a respected scholar of being a murderer) because of potential career repercussions. Does she have any evidence for the idea that the signatories to the counter-petition are going to persecute the signatories to the original petition? Does she have any evidence that younger scholars are going to look at the counter-petition and say to themselves, “well, I better not be too outspoken in the future, because the response to the petition accusing Koh of being a murderer means that doing so will doom my career”? She doesn’t offer any. And besides, if you are willing to be say what you truly believe only if it doesn’t make getting tenure more difficult, you have no business being a law professor in the first place.

I also have a sense that with all the good will driving the counter-petition, there may be a miss on the optics of sending what seems like a sledgehammer to hit what from any external view looks like a group of students doing what students do (and should do).

Students should accuse a respected scholar of being a murderer despite it being “unknowable” what he did in government? That’s not what I think students should do. I prefer them to state their claims precisely and defend those claims with actual evidence. I guess the next time one of my students makes an unsupported claim in an essay, I should give him an “A” anyway — lest he be afraid to make more unsupported claims in the future.

The petition may, I fear, push us towards the kind of “enforced silence” that Justice Brandeis’ concurrence in Whitney v. California sought to steer us away from, particularly given the real (and perceived) power differentials between students and the academy speaking in concert.

So we’re back to the tender, delicate flowers who will stop talking if enough people have the temerity to criticise them. Worse, though, is Ní Aolain’s suggestion — one of many in her post — that this is a battle between students and faculty. It’s not. By my count, far less than half of the signatories to the original petition are students (and the 46 NYU law students have all signed the petition anonymously). Most of the signatories are NYU faculty, NYU alumni, and human-rights groups such as the National Lawyers Guild, the Granny Peace Brigade, and Veterans for Peace. Are all these non-students such tender, delicate flowers that they will stop speaking the minute a bunch of law professors disagree with them? Or are we just worried about the anonymous law students — in which case the best way to publicly accuse a respected scholar of being a murderer is to include a couple of students in your petition, because then pushback against your claim will be off-limits?

From a very personal perspective the petition undercuts the important value that one can and should be subject to criticism for the decisions one takes in and for government wearing a different hat.

No, it does nothing of the sort. I cannot speak for the hundreds of scholars who signed the counter-petition, but I’m willing to guess very few — if any — of them think it is unacceptable to criticise a scholar for his actions as a government official. I certainly don’t. As I said in my original post, I profoundly disagree with the positions Koh took during his government service. I also believe that many of the government officials involved in the drone program are, in fact, murderers and war criminals. I simply don’t believe that Koh is either, which is why I signed the counter-petition.

I bluntly think many human rights academics felt real pressure to sign this petition in ways that are not productive to open, honest, and rights-based conversations.

An easy claim to make when you don’t identify even one academic who felt that pressure, making the claim impossible to rebut. And again, you have no business being a scholar — particularly one who focuses on human rights — if you sign a petition you don’t agree with simply because you fear adverse professional repercussions.

I would fully and unreservedly support and value the decision to appoint Harold to NYU. As a student, I would have relished the privilege to be taught by him. But, the right to question, critique, or assess the decisions we are individually or collectively bound to when we serve in government is an entirely different matter.

And here Ní Aolain gives away the ballgame. So it’s fine for a chaired professor at a major law school to publicly “defend” Koh on one of the most powerful blogs in legal academia. But it’s completely unacceptable — because it prevents “open, honest, and rights-based conversations” — for a large group of scholars, many of whom have no public forum at all to air their beliefs, to sign a public petition in his defense.

Got it.