Elisa Massimino Defends Harold Koh (And So Do I)

by Kevin Jon Heller

Massimino is the head of Human Rights First, one of the leading human-rights organisations in the US. Here is a snippet from her editorial today in the Washington Post, with which I almost completely agree:

As a close observer of the U.S. government’s national security policy, I know it is better for Koh’s involvement.

That’s not to say that I agreed with all the positions he took and defended. Two years ago at our annual human rights summit, Koh gave a speech defending the Obama administration’s use of drone strikes. He made the best case anyone could, but it left a lot to be desired. Throughout his tenure at State, we called on the administration to ensure that its targeted killing program was consistent with the laws of war. We’re still not satisfied that it is.

But on a range of issues — military commissions, treaties, Guantanamo Bay, detention, and transparency on drones — Koh forged progress behind the scenes. This wasn’t the kind of work that made headlines, but it strengthened respect for human rights and reduced suffering. If that makes Koh a sellout, we need more of them.

I hope that the students who signed the anti-Koh petition — who by doing so have demonstrated a concern for human rights — will spend their lives trying to advance them. They would, I’m confident, find such work fulfilling. But they will discover that victories are seldom, if ever, absolute, and that we in the movement simply can’t afford to mistake allies for enemies.

In a better world, the views of knowledgeable (and progressive) national-security experts like Massimino would carry some weight with Koh’s critics. I’d also like to think I have at least some credibility regarding the situation — after all, it was my blog post arguing that the killing of al-Aulaqi was murder under US criminal law that seemingly led the OLC to greatly expand its notorious memo justifying the attack, and I wrote the first substantial (and deeply critical) legal analysis of signature strikes. Moreover, although I don’t think having a been a student or colleague of Koh’s disqualifies someone from defending him, I have no such ties — although I have always admired Koh’s scholarship, I had never even met him until about a year ago, when he gave a lecture at Melbourne (which I disagreed with!) about his time at State.

Alas, many of Koh’s most vociferous critics — though certainly not all — have little interest in reasoned debate. My posts defending Koh are “laughable” and nothing more than “the academic equivalent of the ‘I’m not a racist, but….’ argument” — because it apparently makes no difference how critical you are of the US government’s drone program; if you defend Koh, you’re just an apologist for the program. I have taken “a careerist and opportunity [sic] approach when it suits” me — even though I am a professor in the UK and shudder in horror at the thought of ever having a position in the US government (or any government, for that matter). I am a “hitman” for Koh and an agent “in the market of favors (rather than ideas)” — this part of a bizarre ad hominem attack (with bonus points for working in the word “Zionist”) on Koh for alleged venality. I’m “bullying” the students by defending Koh on the blog instead of letting their accusations of murder go unchallenged. And I’m “elitist’ and “insular” because I believe students have no right to demand “standards” from their professors — a claim based on precisely nothing other than my disagreement with the petition. This is the kind of rhetoric that people use when they have nothing substantive to argue.

Let me be clear: I have no problem with students, faculty, or anyone else criticising Koh. I’ve done that myself. I also fully support the First Amendment right of students, faculty, and anyone else to circulate a petition calling for NYU to rescind its offer to Koh to teach human rights at the law school. But it is not “bullying” for those who respect Koh to respond to irresponsible claims that he is a murderer and war criminal. Nor is it an “attack on the students” to meet their speech with counter-speech. Indeed, if Koh’s critics are “drowned out” by the response to their petition — by the fact that more than 750 people of every political persuasion imaginable believe that the petitioners are, in Massimino’s words, “mistaking allies for enemies” — perhaps the problem isn’t the response.

Perhaps the problem is that the petition’s claims are wrong.


5 Responses

  1. It is sad to see this relatively self-oriented post on a so-what, old news topic. What’s the point here?

  2. Jordan, respectfully, Professor Heller was commenting on an editorial that was posted in a major US newspaper on 30 April, so it is hardly old news. Moreover, blogs are (and I think should) be self-oriented. It is one of the interesting aspects of the genre that readers can feel like they know the author without actually knowing them. Blogs are way more entertaining for that personal approach, even on specialist blogs (and I think some specialist blogs need to have more personal or even light-hearted touches).

  3. Brave decision, couragous stand Kevin, I can only presume, that maybe it won’t add scores to your personal reputation, but, certainly add and contribute to human rights sake (real human rights, people : breathing, suffering, yelling for salvation and help, at the battlefields).

  4. Jordan, also with respect, aren’t you literally the last person in the world who should be objecting to ‘self-oriented’ posts? I am rather surprised that you haven’t cited to any of your SSRN papers in that comment – I suppose there’s a first time for everything.


  5. In light of Seymour Hersh’s latest revelations in the London Review of Books, Harold Koh made use of false evidence to justify the legality of Bin Laden’s assassination. Let’s go back to the Koh:

    “Given bin Laden’s unquestioned leadership position within al Qaeda and his clear continuing operational role, there can be no question that he was the leader of an enemy force and a legitimate target in our armed conflict with al Qaeda. IN ADDITION, BIN LADEN CONTINUED TO POSE AN IMMINENT THREAT TO THE UNITED STATES THAT ENGAGED OUR RIGHT TO USE FORCE, A THREAT THAT MATERIALS SEIZED DURING THE RAID HAVE ONLY FURTHER DOCUMENTED. Under these circumstances, there is no question that he presented a lawful target for the use of lethal force.” [Harold Hongju Koh, “The Lawfulness of the U.S. Operation Against Osama bin Laden,” Opinio Juris, May 19, 2011].

    Can Mr. Heller and Ms. Massimino justify (or dismiss) this one? I hope not.

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