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

by Kevin Jon Heller

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.

http://opiniojuris.org/2015/04/23/students-junior-faculty-and-human-rights-scholars-are-delicate-flowers/

4 Responses

  1. Now let’s bring the students’ petition to this forum. Enough bullying, Kevin. It is time to read and handle facts and ideas.

    STATEMENT OF NO CONFIDENCE IN HAROLD H. KOH

    “A functionary, when he really is nothing more than a functionary, is really a very dangerous gentleman.” – Hannah Arendt, 1964.

    Dear Dean Trevor Morrison and President John Sexton,

    We, the undersigned students, organizations and concerned members of the NYU and global community, condemn NYU Law’s hiring of Harold H. Koh for the 2014-2015 academic year. NYU Law brands itself as “a private university in the public service”[1] and prides itself on its commitment to civil liberties, human rights and international law. Yet, its decision to honor Mr. Koh as a “distinguished scholar in residence”[2] calls these commitments into question given Mr. Koh’s role as a key legal architect of the Obama Administration’s extrajudicial killing program during his time as State Department Legal Adviser (2009-2013) [3].

    From his position of authority within the Obama Administration, Mr. Koh has publicly argued[4] for the U.S. drone program’s legality and has stated[5] that “U.S. targeting practices, including lethal operations conducted with the use of unmanned aerial vehicles, comply with all applicable law, including the laws of war.” This is despite compelling evidence to the contrary, including evidence produced by NYU Law scholars.

    In 2010, for example, the U.N. Special Rapporteur on extrajudicial, summary, or arbitrary executions, Philip Alston, issued a report[6] that outlined why the U.S. drone program violates applicable international humanitarian and human rights laws.[7] Moreover, in 2012, Stanford Law School’s International Human Rights and Conflict Resolution Clinic, in partnership with NYU Law’s Global Justice Clinic, co-authored a report[8] that documented the devastation and the profound human costs that the U.S. drone program has exacted on civilians living in Pakistan. Among the report’s findings were: evidence that U.S. drone strikes have killed and injured substantial numbers of civilians[9]; U.S. drone policies have inflicted profound physical and psychological harm on civilians[10]; the percentage of high-level targets killed by drone strikes are estimated at just 2% of those killed by drone strikes overall[11]; and, finally, the report found that “current US targeted killings and drone strike practices undermine respect for the rule of law and international legal protections and may set dangerous precedents.”[12]

    In addition to publicly defending the U.S. drone program’s legality, and thereby facilitating what Professor Alston has called[13] “a burgeoning program of international killing” that does not comply with international law, Mr. Koh also directly facilitated the extrajudicial, unconstitutional killing[14] of Anwar al-Aulaqi, an American citizen killed by a drone strike in Yemen in 2011.

    Investigative reporter Jeremy Scahill documents Mr. Koh’s particular role in Mr. al-Aulaqi’s assassination in his book, Dirty Wars: The World is a Battlefield. He reports that as legal adviser, “Harold Koh, wanted to lay out the case publicly before Aulaqi was killed,” in an effort to preempt critiques of the administration’s decision to target and kill a U.S. citizen in secret and without a trial.[15] According to Mr. Scahill:

    “In advance of his public speech, the CIA and military gave Koh access to their intel on Aulaqi. Koh settled in for a long day of reading in the Secured Classified Intelligence Facility. According to [Daniel] Klaidman, whose book [Kill or Capture] was based almost entirely on leaks from administration officials, Koh ‘had set his own legal standard to justify the targeted killing of a US citizen: evil, with iron-clad intelligence to prove it.’”[16]

    Mr. Koh’s “stamp of approval” for Mr. al-Aulaqi’s killing was particularly useful to the Obama Administration, Mr. Scahill reports, because his prior reputation as “a liberal, pro-human rights, pro-civil liberties lawyer” was “a strong preemptive strike against the critics.”[17] In essence, Mr. Koh leveraged his human rights record to strengthen his otherwise specious arguments that the U.S. government was not violating either the human or constitutional rights of one of its own citizens. We find Mr. Koh’s conduct in this regard to be unethical and highly unprincipled.

    While we believe that NYU Law should remain committed to academic freedom, we take issue not with Mr. Koh’s opinions but rather with his actions—that is, his direct facilitation of the U.S. government’s extrajudicial imposition of death sentences on U.S. citizens along with civilians of other nationalities. By hiring Mr. Koh to teach International Human Rights Law, NYU Law places its imprimatur not on what Mr. Koh thinks, but rather on what he did.

    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.

    Sincerely,
    The Undersigned

    [1] N.Y.U. Law Public Interest Law Center, http://www.law.nyu.edu/publicinterestlawcenter
    [2] N.Y.U. Law, “Harold Koh will visit NYU Law in 2014-15 academic year,” http://www.law.nyu.edu/news/Harold-Koh-Distinguished-Scholar-in-Residence
    [3] Id.
    [4] Lawfare, “The Obama Administration and International Law, Speech by Harold Hongju Koh, Legal Adviser, U.S. Department of State,” Mar. 25, 2010, http://www.lawfareblog.com/wp-content/uploads/2013/01/Speech-by-Harold-Hongju-Koh-State-Department-Legal-Adviser-at-the-Annual-Meeting-of-the-American-Society-of-International-Law-Mar-25-2010.pdf
    [5] Conor Friedersdorf, Harold Koh’s Slippery, Inadequate Criticism of the Drone War, The Atlantic, May 9, 2013, http://www.theatlantic.com/politics/archive/2013/05/harold-kohs-slippery-inadequate-criticism-of-the-drone-war/275692/
    [6] Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010), available at http://www2.ohchr.org/english/bodies/hrcouncil/docs/14session/A.HRC.14.24.Add6.pdf
    [7]For instance, the Special Rapporteur noted that the United States government’s failure to provide transparency and accountability concerning those it targets and kills is a violation of the United States’ obligations under international human rights and humanitarian law. Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, ¶ 87, Human Rights Council, U.N. Doc. A/HRC/14/24/Add. 6 (May 28, 2010) (“The refusal by States who conduct targeted killings to provide transparency about their policies violates the international legal framework that limits the unlawful use of lethal force against individuals.”).
    [8] International Human Rights and Conflict Resolution Clinic at Stanford Law School and Global Justice Clinic at NYU School of Law, Living Under Drones: Death, Injury, and Trauma to Civilians from US Drone Practices in Pakistan (2010), available at http://www.livingunderdrones.org/wp-content/uploads/2013/10/Stanford-NYU-Living-Under-Drones.pdf
    [9] The report notes that The Bureau of Investigative Journalism (TBIJ) has reported that, “from June 2004 through mid-September 2012, available data indicate that drone strikes killed 2,562-3,325 people in Pakistan, of whom 474-881 were civilians, including 176 children. TBIJ reports that these strikes also injured an additional 1,228-1,362 individuals.” Id. at vi.
    [10] Id. at vii.
    [11] Id.
    [12] Id. at viii.
    [13] Philip Alston, The CIA and Targeted Killings Beyond Borders, 2. Harv. Nat’l Sec. J. 283 (2011) (abstract available at http://papers.ssrn.com/sol3/papers.cfm%3Fabstract_id=1928963).
    [14] Al-Aulaqi v. Obama Complaint for Declaratory and Injunctive Relief (violation of constitutional rights and international law — targeted killing), available at https://www.aclu.org/files/assets/alaulaqi_v_obama_complaint_0.pdf
    [15] Jeremy Scahill, Dirty Wars: The World is a Battlefield 371 (2013).
    [16] Id.
    [17] Id.

  2. I urge Law students and faculty whether in London or New York to question the highly hierarchical structure of the profession and of law schools. It is time to rise up against bullies like Kevin and Koh’s closest adulators. Let me share with all of you, the students’ letter on the toxic and repressive environment at NYU. The quality and cogency of their prose is the best response to Kevin’s stupid and patronizing talk about “delicate flowers.”

    To Our Classmates and Members of the NYU Community:

    “We do not kill our cattle the way the US is killing humans in Waziristan with drones.” – Rafiq ur Rehman

    In the fall of 2013, Rafiq ur Rehman traveled with his 13-year-old son, Zubair, and 9-year-old daughter, Nabila, from their small village in North Waziristan to Capitol Hill. Their purpose in making this long and painful trek was simple: to appeal to the hearts of U.S. lawmakers by sharing stories of the carnage wrought upon their community and upon their family by U.S. drone strikes. In 2012, a U.S. drone strike had killed Rafiq’s elderly mother and severely wounded two of his young children.

    Only five members of Congress showed up.

    The suffering of thousands of individuals like Rafiq, Zubair, and Nabila, moved a few of us to author a Statement of No Confidence in Harold H. Koh. The Statement is fairly simple. It argues that due to Mr. Koh’s role as a key legal architect of the Obama administration’s targeted killing program, a program that violates International Human Rights Law, the Law School should not have hired him to teach that particular body of law. The petition extensively documents the factual basis for our position—and echoes the concerns of other students, academics, and human rights activists.

    The gravity of targeted killings via drones and the factual basis upon which we built our petition warranted this expression of disaffection. Academic institutions, after all, are supposed to be places for honest and critical debates. At times, we have known NYU Law to be such a place—that is, a setting where compassionate and thoughtful people confront, rather than dismiss uncomfortable facts.

    While we welcomed disagreement with the petition, we never fathomed that some faculty and administrators would, intentionally or not, work hard to quash our expression of dissent and intimidate numerous students. Professor Ryan Goodman, for instance, emailed every individual signatory of the petition, including some of his own students and advisees, and urged them to withdraw their support for the Statement. Withdrawal, he stated, “will reflect well on us as a community” [Goodman Letter]. Due to the power imbalances between students and faculty, we find his request inappropriate.

    Stephen Bright, meanwhile, a Yale Law professor and known anti-death penalty lawyer, sent a disparaging email to his former intern, an organizer of the petition and an aspiring anti-death penalty lawyer, following repeated phone calls. He asked her whether she didn’t have better things to do with her time, and later claimed that the petition arose out of ignorance and inexperience. Concerning our corporate colleagues who signed the petition, Mr. Bright asked, “Does someone who is going to a firm to make hundreds of thousands of dollars a year representing corporations [have] any position to express a lack of confidence in Harold Koh?” [Bright Letter] Finally, another student was told that s/he was not welcome at Human Rights First for an internship since the organization held Harold Koh in high regard and was aware of the student’s signature on the petition.[1]

    Rather than a trial of the Obama administration’s targeted killing program, and the distortion of Human Rights Law that it represents, what we have seen unfolding over the past few weeks is the trial of students, mostly women and students of color, who have been dismissed as “naïve” and maligned as “smearers.” There has been no acknowledgement of the concern for human life that prompted the petition, or any acknowledgement that the more than 260 supporters of the students’ Statement include lawyers, students, scholars and pacifists from all over the globe.

    Figuring prominently in this trial is Dean Trevor Morrison, who preemptively announced his verdict prior to meeting with the authors of the recent CoLR Statement: “[allegations of intimidation] are unfounded.” Ironically, the Dean himself, in his first-year constitutional law class, had described the petition as “smear,” “wholly inaccurate” and, once again, urged students to withhold support. Two of his students did, in fact, withdraw their signatures from the petition despite privately expressing agreement with its merits.

    Soon after, the Dean initiated a meeting with the organizers of the petition, ostensibly for the purpose of making our upcoming event “productive.” In the process, he called our public letters “vitriol unseen in the law school” and accused us of “inflicting wounds that will not heal.” His words, uttered to three students of color, two of whom are of South Asian descent, revealed a painful truth: the wounds inflicted upon the egos of the powerful are recognized and defended, while the wounds of Rafiq, Zubair, Nabila and thousands of unnamed others fail to register—not in our university discourse or in the government’s civilian casualty count. This, more than anything else, illustrates what this petition aims to counter and why it is so important.

    For all that has been said by some members of the faculty and administration, we have been saddened by the silences prevailing in their responses. None of the thousands of people assassinated by U.S. drones are mentioned—not once. There has been no questioning of the “Drone War’s” legitimacy or meaningful engagement with our concern that Mr. Koh did in fact provide the legal rationale and cover for this program. There has been no reflection upon the relationship between state-sponsored violence abroad and state-sponsored violence here at home, in places like Ferguson, North Charleston, and New York. And there has been little concern with human rights becoming a field that legitimizes U.S. global hegemony by masking its questionable interference in the social and political structures of other nations.

    Indeed, the silences do not stop there. Neither the facts nor the sources that we extensively cite and upon which we base our critique, were genuinely examined. Rather, they were largely dismissed. Meanwhile, we have been accused of leveling attacks that are not “evidence-based” and of launching nothing more than a “smear” campaign. We wonder: if we have gotten the facts wrong about Mr. Koh’s well-documented role in shaping and defending the U.S. government’s targeted killing program, why haven’t the true facts surfaced? Why are we asked to blindly take the word of his friends, who speak of past actions that have no bearing on his role in this particular violation?

    We have sought to understand the troubling responses that we have received from some faculty and administrators. It occurs to us that those in government who defend drone attacks in Pakistan, Yemen, Somalia, and now the Philippines, or who justify wars whether in Iraq or Libya, expect to waltz comfortably through the revolving door from government back into the academy, while demanding silence concerning these crimes.

    We desire to break these silences in order to demand accountability and to express our outrage with the devaluation of human life that the U.S. extrajudicial killing program reflects.

    The Undersigned,

    For MORE, PLEASE, VISIT: https://rethinkkoh.wordpress.com/

  3. As if on cue, Rosa Castro describes a long post that responds to Ni Aolain point by point as “bullying.” A better illustration of my point about the think-skinnedness of Koh’s critics is difficult to imagine. Apparently, the only acceptable response to their unsubstantiated claims is silence.

  4. I wish I had had the courage of these students when I was in Law School. I well remember participating in the boycott at Harvard Law School on the issue of lacking a black woman tenure track professor. I remember the lack of comprehension of why we did that as well as the intense discussions among students about whether to call for that boycott.

    Koh is in the line of fire right now as the most vulnerable part of the drone apparatus about which these students can speak their concerns and act on them. No doubt this experience is difficult for him, but I am sure it is just as difficult for students who are far more vulnerable at the start of their careers than he is at the pinnacle.

    What may be perceived as thin skinned may be more about the students sense of vulnerability rather than anything else. After all, the people with power at their school are coming down on them and that would make me uncomfortable if I was a student in that place.

    This is bottom up accountability in a space where the top has not been willing or able to provide accountability.

    That the top does not like this kind of action is a common phenomenon. The top does not understand this kind of phenomenon that draws its source in a kind of despair with the normal levers of power giving any meaning to the dissent.

    So it goes and so it has gone for as far back as I can remember including the civil rights movement and the antiwar movement.

    Afflicting the comfortable is at the heart of these kinds of acts by students. More power to those students.

    What people do in their time in the government is important and that people evaluate what they understand was done then and respond to it is healthy. All of us who worked on torture have watched ten years of lack of accountability even with each additional report of the horrendous things that people rationalized and committed.

    Their protest may reek of temerity to many, but (paraphrasing a line in the Errol Flynn Robin Hood to King John) “it reeks of temerity fluently”. It is an act of power by those who are encouraged by the top to think of themselves as powerless. The top is asking these students to paper over the contradiction they experience and these students are just not able to do it.

    They have simply refused to be relegated to a passive role and no amount of professors trying to silence them or considering them misguided will deter them. At least in my experience.

    It was the same when I led the effort to get the ASIL to adopt the Centennial Resolution on Laws of War and Detainee Treatment. The battle lines were drawn and the resistance of the top was fierce. Now many look back on that resolution as a shining moment of the ASIL.

    So this may be a shining moment for NYU if all powers can allow themselves to understand the profound sense of disarray and contradiction that the students are feeling. Or it may be an ignominious moment.

    It’s the old praxis moment and people see how people line up when battle lines are drawn.

    I wonder what the late Thomas Franck would have said or done.

    These students do not hear a response other than repression from either the American right or left establishment. That is the contradiction.

    Nothing new under the sun. Interested to watch how this rebellion from the bottom plays out.

    Best,
    Ben

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